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MOHAMMEDAN THEORIES
OF FINANCE

WITH AN

Introduction to Mohammedan Law
and a Bibliography

NICOLAS P.1 AGHNIDES

B. L. (OonttantinopU)
A. M. (Columbia)

SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS

FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

IN THE

FACULTY OF POLITICAL SCIENCE
COLUMBIA UNIVERSITY

NEW YORK
1916

THE FACULTY OF POLITICAL SCIENCE OF
COLUMBIA UNIVERSITY, NEW YORK

PREFACE

THE raison d'etre of this dissertation is found in the in-
trinsic interest of its subject and in the fact that this subject
up to the present time has never been treated in its entirety
and for its own sake. There is indeed some literature
bearing upon it in European translations of Moham-
medan legal text-books, but the treatment of finance in these
text-books is naturally terse and incidental and covers but
a portion of the entire subject. Hamilton's English trans-
lation of the Hidayah is a case in point. The few chapters
in it bearing on finance are at times very inaccurate — a
defect explained by the fact that the translation was made
from a Persian translation of the original Arabic instead
of direct from the original — and lack all historical perspec-
tive. Moreover, they do not give a full insight into the
arguments invoked in support of the particular views. The
translations into the other European languages unfortun-
ately cannot lay claim to greater perfection, the chief dif-
ference among them being their varying degree of accuracy.

In this dissertation an attempt has been made to give a
comprehensive exposition of the Mohammedan financial
theories in their entirety with especial emphasis when pos-
sible on the reasons underlying them. To this end all the
available primary sources have been used and the divergent
views which they contain frequently cited. A body of
ancient theories, however, no matter how fully set forth,
would convey but little meaning to the modern mind, unless
the origin of those theories were indicated and their practical
bearings pointed out. These two last needs are met by

6 PREFACE

Parts I. and III., Part II. being devoted to the theories
themselves.

The general purpose of Part I. is to explain the terms
and concepts of Part II. More particularly, with a view
to settling the question of the origin of Mohammedan
financial theories, it attempts to determine the degree to
which those theories, as a matter of theoretical possibility,
were subject to foreign influences. Its title, Introduction
to Mohammedan Law, seems at first blush to bear no
relation to these purposes. The connection, however,
becomes at once clear when it is remembered that Mo-
hammedan financial theory is but an integral part of
fiqh or Mohammedan law in general. An explanation
of the origin of fiqh is, therefore, also an explanation of
the origin of Mohammedan financial theory. According
to the Mohammedan doctors fiqh has been derived from the
revealed sources of the Koran and the Prophetic conduct
or sunnah exclusively, in conformity with a body of prin-
ciples called usul-al-fiqh. This construction would seem to
preclude any foreign influence in the development of
Mohammedan law. It was, therefore, to these principles
collectively called usul-al-fiqh that we had to turn to deter-
mine how far they allowed foreign ideas to enter fiqh.

The three conventional parts of the Mohammedan
treatises on usul-al-fiqh are : ( i ) an introduction on the in-
terpretation of terms (tafsir wa ta'wll) ; (2) an explanation
of the principles (arkan or usul) on the basis of which
Mohammedan law (fiqh) is derived from the above men-
tioned revealed sources; (3) an exposition of the values
(ahkam) or legal provisions so derived. Of these parts, the
first and third have been practically omitted. The first,
because as regards the question of the extent to which
foreign influences were allowed to enter the structure of fiqh,
it is, in comparison with the second, of negligible import-

PREFACE

ance; the third, because it is not quite relevant to the pur-
pose in view. However, inasmuch as a secondary purpose
of Part I. is to offer a background for the understanding
of Part II., an exception to the rule was made in incor-
porating from this third part the chapter entitled Classifica-
tion of the Sharl'ah Values. The two purposes mentioned
will not account for every line of Part I., but it was con-
sidered expedient, at the risk of adding to the length of the
book, to make Part I. a fairly comprehensive introduction to
Mohammedan law. The absence of such an introduction
in any language, more than warranted, in the author's
opinion, the few additional pages which might have been
spared the reader.

The purpose of Part II., the main part of the book, is to
present in an orderly and clear fashion the views and
opinions of the Mohammedan doctors in regard to financial
theory. Part II. concerns itself, accordingly, with theory
exclusively, purely descriptive and historical matter being
carefully avoided. The reader should, therefore, remember
that, whether or not included within quotation marks, the
views expressed in Part II. are merely the views of the
Mohammedan doctors and as such they need not always
coincide with the facts, nor agree with the conclusions
reached in Part III.

The purpose of Part III., finally, is to inquire into the
origins of Mohammedan financial practice and trace out its
relation to Mohammedan financial theory. Part III., then,
tests by the light of history the conclusions reached in Part
I. as to the theoretical possibilities.

The doctrines and views brought together in this boo
are it must be borne in mind, the orthodox, particularly the
Hanifite, and to a less extent, the Shafiite and Malikite ones.
The views of other schools are only occasionally mentioned,
not only because they have enjoyed but scant recognition,

8 PREFACE

but also because the sources concerning them are few and
inadequate. In quoting the views of the doctors, the source
of each view has been indicated whenever it was considered
important or was found in only one or few of the sources.
In most cases, however, it was deemed sufficient to indicate
the sources consulted collectively, either at the beginning
of the section or the end of the paragraph. In referring
to the sources a shorter title, usually the one employed by
the Mohammedan doctors, has been used. The full title of
each reference will be found in an alphabetical list at the
end of the book. As an aid to the reader, the gist of the dis-
cussion has been indicated by the words printed in bold
faced type. It is hoped that this device and the analytical
table of contents and topical index that have been supplied
will permit ready reference to any part of the discussion.

In transliterating the Arabic words the object has been
to reproduce exactly their spelling, but only to approximate
their pronunciation. Therefore, in order to avoid con-
fusion for those ignorant of Arabic, the inflective Arabic
endings, except in the case of certain pronouns, have been
omitted. As regards the method of transliteration itself,
the one followed by most European orientalists has been
adhered to, barring a few slight modifications making for
greater simplicity and better conforming to the peculiarities
of English. Thus, instead of the two usual diacritical signs,
the point and the dash, only the dash has been used. Gh has
been replaced by g, and u (standing for silent waw as in
quam) by w. The pronouncing value of the different letters
is approximately as follows : y is to be pronounced always as
a consonant as in year ; g as gh in Buckingham ; all the single
consonants, whether or not underlined, must be pronounced
as in English; th as in thorn', dh like th in then; sh as in
should ; kh like ch in the Scottish word loch ; the signs ' and '
may be ignored ; all the vowels are to be pronounced as in

PREFACE 9

French, the accented ones longer. Consecutive consonants
have been set off by a hyphen, when necessary, to indicate
that they are not to be pronounced as one letter. In general,
combinations of words used currently as single names, as
usill-al-fiqh or bayt-al-mal, have been treated as single
words. Furthermore the article al has always been united
to the word it defines. Where capitals or bold faced type
are used the accents are omitted.

The author wants to take this opportunity to express his
thanks to all those who have aided him in his work, and
particularly to Professor R. J. H. Gottheil. He feels es-
pecially grateful to Professors H. R. Seager and V. G.
Simkhovitch for assistance with the proofs and to Professor
E. R. A. Seligman, but for whose encouragement this work
might never have seen the light. His thanks are also due
to the authorities of the Columbia University Library and
the New York Public Library for the special facilities
which they have afforded him. But for the rich collection of
Oriental books of the New York Public Library, the prepar-
ation of this dissertation in this country, would have been
well-nigh impossible.

The discussion for Christian readers of Mohammedan
institutions, because of the long and bitter animosities that
have separated Christians and Mohammedans, is a matter
of great delicacy. The writer has sought to treat with ab-
solute impartiality all of the topics that he has considered
and trusts that the fact that he was reared as a Christian
has been so fully offset by his strong Mohammedan sym-
pathies that he has attained this aim. It is sincerely hoped
that all the sources consulted have been given due credit
and that the instances are not many where accuracy, the
chief aim of the author, has been missed. In such in-
stances, the pioneer character of the work will perhaps be
considered sufficient ground for indulgence.

CONTENTS

PART I

THE BACKGROUND — INTRODUCTION TO MOHAMMEDAN
LAW AND BIBLIOGRAPHY

FACE

CHAPTER I
PRELIMINARY CONCEPTS

Definitions of shari'ah, sharl'ah evidences, shari'ah value, fiqh, bases
of fiqh and ujul-al-fiqh ; relation of the latter to fiqh; classification
of sciences; relative position of us&l-al-fiqh, fiqh, and finance 23

CHAPTER II
THE FIRST BASIS OF FIQH : THE KORAN

Definition; the two periods of revelation; the meaning of Hijrah;
its effect on Islam; nature of the revelations; codification of the
Koran ; commentaries 30

CHAPTER III
THE SECOND BASIS OF FIQH: THE SUNNAH (PROPHETIC CONDUCT)

Sec. I. General Considerations:

Sunnah an important source of law; hadlth and its difference
from sunnah; latter a generic term for custom; bid'ah, or inno-
vation, its opposite; great importance of sunnah after Moham-
med's death ; resulting inducements to falsification of sunnah ;
memory versus writing; the science of hadiths; collections of

hadiths; commentaries 35

Sec. II. The Different Kinds of the Sunnah with Respect to Trans-
mission :

(i) "Continuity" of sunnah; (a) the mutawdtir; its defini-
tion; three necessary conditions; other conditions; how to tell
that conditions have been met; the value of the mutawdtir; is
knowledge produced by the mutawdtir axiomatic?; (b) the
mash-hur; (c) the "individual"; (2) "discontinuity" of sun-
nah; (a) "formal"; (b) "real"; (i) contradiction; (ii) defect

in the transmitter 39

I2 CONTENTS

Sec. III. Qualifications Regarding the Transmitter as Such:

(i) The "well-known" transmitter, (a) who is a faqlh, (b)

who is not a faqlh; (2) the " unknown " transmitter 48

Sec. IV. Conditions of Retention and Transmission 49

Sec. V. The Impeachment of Hadiths:

(A) Impeachment by the transmitter himself: (i) express;
(2) implicit. (B) By others: (i) the -Companions; (2) the
hadith-teachers : (a) the impeachment is indefinite; (b) it is de-
finite: (i) motivated by partisan spirit; (ii) not so motivated.

Sec. VI. Are the Rules Concerning the Sunnah an Adequate

Guarantee of its Reliability?

General nature of these rules; theoretically, a mutawdtir might
be no stronger than a mash-hur; rules concerning the "individ-
ual" no absolute guarantee of its truth; rules on justice and
impeachment; in fact, mutawdtir superior to mash-hur, and latter
to " individual " ; sunnah on the whole reliable 52

CHAPTER IV

THE THIRD BASIS OF FIQH : THE IJMA' (THE CONSENSUS OF THE
COMMUNITY)

Importance, justification and denial of ijmd1; ijma, as a theory, a
later product; ijmd' terminates controversy; some divergence of
opinion an indication of God's grace; definition and formal cause
of ijmd' ; who is eligible for ijmd'^ conditions, value, abrogation,
basis, and transmission of ijma 60

CHAPTER V
THE FOURTH BASIS OF FIQH: THE QIYAS (ANALOGY)

Sec. I. General Considerations:

At first no special rules on use of analogy; the two tendencies
in Mohammedan law; the hadith-folk, and the ra'y-io\k; contro-
versy between them occasioned by Abu Hamfah; qiyds identified
with ra'y; dislike of hadit}i-fo\k for abstract speculation and
scholastic subtleties ; qiyds in reality curbed use of ra'y (personal
opinion) instead of fostering it; use of ra'y restored by intro-
duction of istihsdn, istishdb, and istisldh; controversy largely a
quibble over words ; both sides used personal opinion, though
the hadith-iolk less; qiyds accepted by most orthodox schools;
definition of qiyds; justification of qiyds and arguments for and
against it 67

CONTENTS 13

TACK

Sec. II. Is It Lawful to Investigate the "Effective" Causes of

Divine Prescriptions ? 77

Sec. III. How to Determine the "Effective" Cause:

To be an " effective " cause, an attribute must be convenient ;
also "effective"; the four kinds of effectiveness; the tardi
causes; the methods of tard or dawrdn, and tnasdlih tnursalah. . . 80

Sec. IV. The Conditions of Qiyds 86

CHAPTER VI

ABROGATION AND CONFLICT OF THE EVIDENCES

(i) Abrogation; conditions; only Koran and sunnah can abro-
gate; (2) conflict without preference; what is done in case of
conflict between two qiydses, or two verses of the Koran, etc. ;

(3) conflict of evidences unequal by virtue of a secondary, or

(4) an essential difference: inequality in (a) content, (b) sup-
port 89

CHAPTER VII

OTHER PRINCIPLES OF LEGISLATION
Sec. I. Istihsdn:

The four kinds of istihsdn; fourth kind condemned by al-
Shafi'i on ground that it is a case of using personal opinion ;
Hanifites contend istihsdn is a kind of qiyds; contention not
borne out by historical records ; a later fiction ; even granting
this fiction, istihsdn is a liberating principle; illustrations; istib-
sdn personal opinion in disguise 94

Sec. II. The Other Principles :

(i) Istisldh', the three kinds of "useful purpose"; (2) isti-
jhdb; the extended scope given to it by al-Shafi'i; (3) the sun-
nah of the Companions; its great importance; the sunnah of the
Followers; (4) custom; its value in opposition to (a) the re-
vealed texts, (b) the doctors' opinions; (5) the previous dispen-
sations . . 102

I4 CONTENTS

CHAPTER VIII
CLASSIFICATION OF THE SHARI'AH VALUES

I. The shari'ah value consists in correlation (rukn, 'illah, sabab,
shar^ 'aldmah). II. It does not consist in correlation: (A) It is
the effect (athar) of an act; (B) the quality of an act: (i) em-
phasis is laid on the "worldly consideration" (validity, nullity,
imperfection, etc.) ; (2) emphasis is laid on the " religious con-
sideration": (a) 'azimah: (i) fard; (ii) wdjib; (iii) sunnah
and no/?; (iv) mubdh; (v) makrah; (vi) hardm; (b) rukhsah.
Performance of obligation of three kinds: (i) add; (2) qadd;
(3) i'ddah 109

CHAPTER IX

IjTIHAD OR THE EXERCISE OF INDEPENDENT THOUGHT

Definition; subject-matter; scope; obligation of mujtahid to exer-
cise ijtihdd; qualifications of the mujtahids; the "splitting" of
ijtihdd, or general education versus specialization; limited muj-
tahids like muqallids; legal effect of ijtihdd; classes of mujta-
hids; fiction of "closing of door of ijtihdd" a later development
due to historical causes ; no theoretical basis ; classification of
doctors' writings; muqallids, intermediate, 'dmtnis lowest in in-
tellectual hierarchy; the process of ifta; the mufti who is not a
mujtahid; who is a mujtahid; duties of the 'dmmis; may an
'dmmi follow a definite school? may he change it? taharri, or
resort to intuition 117

CHAPTER X
THE FiQH-ScHOOLS AND THEIR FOUNDERS

Fi<7/i-schools result of conflicting interests and opinions ; most im-
portant schools; origin and content of orthodoxy; who is a Mos-
lem? three classes of Moslems; what is Islam, faith (imdn),
and kufr (unbelief) ? differences between orthodox schools
mainly in field of fiqh; the Hanifites ; Abu Hanlfah; the charges
igainst him; first to codify Mohammedan law on basis of qiyds;
liberal in his views; Abu Yusuf; Muhammad Ibn al-Hasan ; the
followers of the school; the Malikites; Malik Ibn Anas; cham-
pion of hadith-folk ; his use of ra'y ; his followers ; the Shafiites ;
al-Shafi'i; his emphasis on precedent; his eclecticism; the Han-
balites ; Ahmad Ibn Hanbal ; his conservatism ; the Zahirites ;
Dawud Ibn 'Ali ; Al-Awza'i ; al-Thawri 133

CONTENTS

PAGE

CHAPTER XI

CONCLUDING REMARKS 148

BIBLIOGRAPHY 157

PART II

THE FINANCIAL THEORIES

A- Revenue

CHAPTER I IQQ

PRELIMINARY REMARKS
I. Religious Revenue
CHAPTER II

THE ZAKAT TAXES

Sec. I. General Principles:

Definition of zakdt; zakdt also called jadaqah; obligation and
cause of zakdt; nifdb; real and hypothetical productivity; other
requirements; exemptions; zakdt becomes due upon lapse of
year ; " dissolution " of year ; must nifdb be complete through
the entire year? acquisition during year; how nifdb is reckoned;
case of joint ownership in cattle; in other property; lapse of zakdt
debt ; destruction ; death of owner ; apostasy ; sale of animals on
which zakdt is due ; the Taglib tribe; zakdt of converts; of rebels. 203

Sec. II. The Zakdt of Sawd'im or Flocks and Herds :

What animals are sawd'im; how their nifdb is reckoned; zakdt
of camels; of oxen or bulls and cows (baqr) ; of sheep and
goats; of horses; case of mules and asses; zakdt of the young. . . 244

Sec. III. The Zakdt of Gold and Silver and the Articles of Trade:
Trade zakdt different from cattle zakdt; conflict between the
two; zakdt of gold and silver; their ni$db; wrought gold and
silver like bullion ; ornaments ; value or weight in payment of
zakdt; alloys; determination of zakdfs amount; use of Archi-
medes' law; articles of trade; intention of trade supported by an
act; what are articles of trade; implied intention of trade; ex-
amples; appraisal of articles of trade; zakdt of claims; three
kinds of claims ; zakdt of rentals and wages 261

j6 CONTENTS

FAO*

Sec. IV. The Zakdt of the Produce of the Earth or the Tithe:

Dispute as to nature of tithe; obligation and cause of tithe;
property subject to it; nijdb; appraisal of dates and grapes;
rates; consumption before payment of tithe; lands of minors,
etc., with respect to tithe; tithe of honey; tithe due on tithe lands
only; combination of tithe and khardj; habitations and ceme-
teries; habitations made into gardens; springs of tar, etc.; lapse
of tithe; tenant in regard to tithe; case of free lease; the Taglib
tribe 282

CHAPTER III
COLLECTION AND DISCHARGE OF THE ZAKAT

Sec. I. The Collectors (General) :

Distinction between " apparent " and " non-apparent " prop-
erty; collectors' jurisdiction; failure to pay sakdt; case of un-
just collectors; concealment of sakdt; classes, qualifications and
powers of collectors; collector's delay; owners' contentions; are

receipts necessary ; collectors' contentions, etc 296

Sec. II. The 'Ashirs or Collectors on the Public Road :

Institution justified by Hanifites and Malikites, condemned by
Shafiites; jurisdiction of 'dshirs; rates; case of dhitnmis and
harbis; tax of wine and pigs ; perishable goods ; mukdtabs; mu$d-

ribs, tribe of Taglib 314

Sec. III. The Discharge of the Zakdt Obligation (General) :

Necessity of intention; intention by the sultan; delay in pay-
ment; advance payment of zakdt; of tithe; substitution of values;
payment of zakdt in terms of claims ; payment to rebels and

tyrants ; to others than beneficiaries 323

Sec. IV. The Place of Intuition (Taharri) in the Discharge of the
Zakdt Obligation 339

Sec. V. The Use of Cunning in the Discharge of the Zakdt Obli-
gation 342

CHAPTER IV

THE FINANCIAL CONTRIBUTION FOR THE CONDUCT OF HOLY WAR AND

FOR OTHER PUBLIC PURPOSES
A

II. Secular Revenue 348

CONTENTS I7

rxcc

CHAPTER V
PRELIMINARY CONSIDERATIONS

Sec. I. Classification of Persons :

" Moslem world " ; " enemy world " ; " world of allies " ; state
of war, the normal state; terminated in three ways; conversion;
temporary amdn; perpetual amdn; should infidels be allowed to
settle in "Moslem world" ; how perpetual amdn is dissolved;
effect of refusal to pay jizyah; four classes of persons 354

Sec. II. Classification of Lands :

Tithe lands; tithe water; khardj lands; dhimmi buying land
from a Taglabi ; from a Moslem, and vice versa; a third class
of lands 359

CHAPTER VI
THE KHARAJ OR LAND-TAX

Meaning of term; proportional, and fixed khardj; muqdta'oh
khardj; khardj a charge on land irrespective of owner ; rates of
fixed khardj; factors determining tax-bearing capacity; quality
of land; kind of crop; method of irrigation; distance to markets;
modes of assessment; change in land's productivity; lands lying
fallow ; change of crop ; khardj due irrespective of cultivation ;
nature of khardj of Egypt and Syria; no khardj on habitations;
fixed khardj due once a year; lapse of khardj; seller versus
buyer; proportional khardj; tenant versus landlord; debts of
khardj; advance payment ; payment to rebels ; currency accepted
for, and measures used in, khardj; dispute between taxpayer
and collector; who pays cost of collection?; officials of fa'y
revenue 377

CHAPTER VII
THE JIZYAH OR POLL-TAX

Meaning of term; justification of jizyah; who may pay it; two
kinds; rates; persons liable to it; exemptions; time of collection;
lapse of jizyah ; humiliation in collection 398

!8 CONTENTS

FAGB

CHAPTER VIII
OTHER SOURCES OF REVENUE
Sec. I. The Spoils of War:

Options of calif as regards spoils; difference between land
and chattels; where and how spoils are divided; giving of extra

shares ; public treasury's share one-fifth of spoils 409

Sec. II. The Tax on Mines and Treasure-Trove (Rikds) :

Dispute as to nature of tax; as to meaning of rikdz; three
kinds of mines; only first kind pays tax; pearls and other sea

products; quicksilver; treasure-trove; three kinds 413

Sec. III. The Tax on non-Moslem Traders, and the Estates of De-
ceased Persons 422

B. Expenditure
CHAPTER IX

THE PUBLIC TREASURY AND THE MOHAMMEDAN COUNTERPART OF A

BUDGET

Concept of public treasury; three classes of revenue, sadaqah (re-
ligious), booty, and fa'y; points of resemblance and difference;
revenue forming a part of public treasury; detailed list of assets
of public treasury; some principles concerning expenditure; case
of dhimmis; of real estate ; liabilities of public treasury 423

CHAPTER X

EXPENDITURE OF THE ZAKAT TAXES (RELIGIOUS REVENUE)

Beneficiaries of zakdt taxes: the poor; indigent; collectors; mukd-
tabs; debtors; "the way of God"; wayfarers; " mu'allafah
qulitbuhum " ; how beneficiaries are determined ; mode of distri-
bution among them ; who may not be a beneficiary ; amount of
assistance; zakdt of one town may not be spent in another 439

CHAPTER XI
EXPENDITURE OF THE SECULAR REVENUE

Sec. I. The Booty Revenue:

Spoils originally divided into five shares; the Prophet's share;
that of his relations ; mode of distribution 465

CONTENTS ig

PAOB

>ec. II. The Fa'y Revenue :

Disbursed for Moslem community; the Shafiite and Malikite
views; beneficiaries of fa'y different from those of sadaqah; the
imdm's presents; shares of children and slaves; death of bene-
ficiary ........................................................ 470

Sec. III. The Military Stipends (Fa'y Revenue Continued) :

Qualifications of stipendiaries; method of registration; order
of registration; among Arabs; non-Arabs; amounts of stipends;
stipendiaries examined yearly; time of payment; rights and
duties of stipendiaries ; subsistence of stipendiaries' offspring . . . 477

CHAPTER XII
(TAX GRANTS

^~~"^r-^

(i) Grant of tithe; (2) grant of khardj; (a) grantee is a bene-
ficiary of sadaqah; (b) or of share of masdtih; (c) or of fa'y;
grant of jisyah; grant of khardj: (a) for a definite term; (b)
hereditary grants; (c) life-grants: (i) grant in payment of tem-
porary services; (ii) of permanent services; (Hi) of wages ... 484

CHAPTER XIII

CONCERNING PUBLIC RECORDS
Sec. I. The Public Registers:

Records of cities; tithe-lands; khardj-\ands ; dhimmis; mines;
frontier cities ; tolls .......................................... 490

Sec. II. The Duties of the Public Registrars:

Records of laws ; settlement of accounts ; recording of reports ;
audit of collectors ........................................... 404

C. -

(^CHAPTER XIV
PUBLIC DOMAIN

(i) Waste lands; (2) cultivated lands: (a) owners known; (b)
owners unknown: (i) lands set apart for public treasury; (ii)
khardj lands; (iii) lands reverted to public; exposed and con-
cealed mines ; public reservations ; forests ; meadows ; fishing and
hunting ; water ; markets ; schools, etc ......................... -500

CHAPTER XV
SUMMARY AND CONCLUSION ..................................... 523

INDEX .......................................................... 537

PART I

INTRODUCTION TO MOHAMMEDAN LAW
AND BIBLIOGRAPHY

CHAPTER I
PRELIMINARY CONCEPTS

THE word shari'ah is the general name given to the
Mohammedan dispensation and is defined by the doctors as
4< that which would not be known had there not been a divine
revelation." 1

This definition of sharVah is broad enough to include the
revelations made by the Hebrew Prophets and Jesus, but
their revelations are considered valid only in so far as they
have been confirmed by those made through Mohammed.
The latter therefore are the shari'ah par excellence. A
second corollary from the above definition is that only what
is expressly stated in the divine revelations, or may be in-
ferred from them by analogy, properly comes under shari'ah.
Matters determined by intellectual processes remain, there-
fore, outside, e. g., the obligation of belief in God or the
Prophets is outside of shari'ah because it is a matter to be
established intellectually.

Inasmuch as the prescriptions contained in the shari'ah, to
use a judicial analogy, serve as evidences for the establish-
ment of shari'ah values, they have been called by the doctors
"shari'ah evidences" (adillah shari'yyah). With refer-
ence to the source from which these evidences are obtained,
the doctors have distinguished four types of shari'ah evi-
dences, namely, the Koran, the sunnah, the ijma', and the
qiyas.

lTawfch, p. 21.

24 MOHAMMEDAN THEORIES OF FINANCE

A shari'ah value (hukm shar'i) is defined as the quality
" determined as a result of divine revelation," e. g., the
fact of a human act like lying being prohibited in the
shari'ah is its shari'ah value.1

The science which derives the shari'ah values from the
shari'ah evidences is the " science of fiqh," or simply fiqh,
and the person conversant with this science is the faqih.

Fiqh has been defined by Abu Hanifah in a general way
as " the self's knowledge of what is to its advantage and
disadvantage." This definition, it will be observed, is very
broad and includes matters of conduct (' amaliyyat) as well
as matters of belief (i'tiqadiyyat), and of ethics (wijdan-
iyyat). Some have restricted fiqh only to matters of con-
duct, such as civil transactions (mu'amalat) and religious
ritual ('ibadat).

Fiqh has been defined also in a specific way as " the
deduction of the shari'ah values relating to conduct from
their respective particular (tafsili) evidences." By the use
of the term " shari'ah " it is intended to leave out intellec-
tual and perceptual values, such as the obligation of belief
in God and the Prophets. The word " conduct " excludes
points of theory, e. g., that the ijma' is a lawful evidence
for the establishment of shari'ah values. " Deduction "
excludes knowledge acquired from a mujtahid, instead of
by direct inquiry into the evidences. According to this, a
person is not called a faqih when he only knows the shari'ah
values. He is called a faqih only if he has himself, by per-
sonal inquiry and thought, deduced those values. This

1 The Arabic word hukm (plural, ahkdm) is used in various slightly
different meanings which no single English word would exactly render.
At least two words will be used to express the Arabic hukm, the word
value, as in this case, and the expression "legal result". For example,
when the doctors say that the hukm of a sale is the transfer of owner-
ship in a thing from the seller to the purchaser, they mean only to
describe the legal result of a sale.

PRELIMINARY CONCEPTS 25

definition is according to the Shafiite doctors. The Hanifite
definition and the one adopted in the modern Ottoman civil
code (majallah) , ignore the way in which this knowledge
has been obtained. Consequently the mere knowledge of
the sharVah values is fiqh, and the person who has this
knowledge is a faqih. In other words, a faqlh need not be
a mujtahid.1 Finally, the term " particular " indicates that
the premises which fiqh uses are not directly obtained from
the four sharfah evidences, namely, the Koran, the sunnah,
the ijma', and the qiyas. These evidences, as they stand,

1 This division between the Shafiites and the Hanifites is only a phase
of a more fundamental division among the doctors concerning the defi-
nition of science in general. One group of doctors holds that knowl-
edge without an understanding of the underlying reasons is not sci-
ence ('i/m) but narration (hikdyah). The other group contends that,
in addition to the above meaning, science also means the mere knowl-
edge of the rules (masd'il) as well as the ability (malakah) to recall
to, or bring before the, mind (istiljtfdr) those rules. For instance,
they say, when it is claimed that a person knows syntax, it is only
meant that he has the ability to bring before the mind the rules of
syntax, not that he actually remembers them. The first group replies
that, although science may also mean, as contended by the second
group, the mere knowledge of the rules, or the mere ability to recall
those rules, it is so only when that knowledge or that ability is coupled
with a proper understanding of the reasons.

There has also been a dispute as to what exactly is meant by the
word ability in this connection. Some say, it is the ability to know all
the rules of the science, either by recalling to the memory what has
already been stored away in it, or by discovering (istih$dl) what is as
yet unknown. It is not, they add, the ability to recall only, known as
actual intellect ('aql bi '/-/»'/), nor is it the ability to discover only,
known as potential intellect ('aql bi 'i-malakah). For if the latter were
the case, a person who has not as yet learned a single rule of a sci-
ence, although he has the ability to discover those rules, would have
to be called a scientist. In the al-atwal it is stated that the ability to
recall what has already been learned is sufficient. The ground for this
view is that it is not an uncommon thing for sciences to be in a state
of development. In such cases a knowledge of the entire subject-
matter is out of the question, but such knowledge of it as has been
already acquired may properly be called science. (Tech. Diet., pp. 2-3.)

26 MOHAMMEDAN THEORIES OF FINANCE

are too general (ijmali) and are not available for the pur-
poses of fiqh, until after they have been reduced by a par-
ticular science to logical propositions, each relating to one
particular set of values.

This particular science, which prepares its premises
for fiqh, is the so-called science of usul=al=fiqh, literally,
the science of the bases of fiqh. It has been called so,
because the four shari'ah evidences above-mentioned which
form its subject-matter, are in the last analysis, the four
bases on which the deductions of fiqh rest.

The science of usul-al-fiqh has been defined by the doc-
tors as " the science of the principles whereby one reaches
fiqh in the true way." * The definition needs explanation.

Usul-al-fiqh discusses only those principles which are
immediately necessary for reaching fiqh, in other words, it
does not concern itself with less immediate subjects, like
language and syntax, or dogmatics (kalam), although they
too are necessary. On the other hand, the expression " in
the true way " is intended to exclude controversial subjects.

The function of iisul=al=fiqh is then to prepare the
premises which are to be used in fiqh in establishing
the shari'ah values in particular cases. Thus, usul-al-
fiqh provides for fiqh as premises certain universal pro-
positions (qawaid kulliyyah) to be used by fiqh in deriving
the provisions of the law applicable to particular cases.
For example, usul-al-fiqh tells that under such and such
conditions ijma' constitutes an evidence for the establish-
ment of a shari'ah value. Fiqh takes this proposition as
a premise and deduces from it the conclusion that the prac-
tice e. g., of istisna',2 is lawful because there is an ijma' to
that effect. Or, again, usul-al-fiqh tells us that under cer-

1 Towdih, p. 27.

J Istisnd1 is placing an order with an artisan.

PRELIMINARY CONCEPTS 27

tain conditions analogy (qiyas) is a lawful means of
establishing a sharTah value.

In short, usiil-al-fiqh discusses the shari'ah evidences,
that is, the bases of fiqh, in so far as they may be
used as evidences for the establishment of the sharTah
values, and the shari'ah values in so far as they are deduced
from the sharTah evidences, but it does not discuss what
the shari'ah values are in particular cases, that being the
function of fiqh.

The component parts of usul-al-fiqh and fiqh, as well as
the position of these two disciplines among sciences in gen-
eral will be made clear by the following classification out-
lined by the Hanifite doctors.1

The established sciences ('ulurn mudazuzvanah) are:

I. Intellectual ('aqliyyah), acquired through the exercise
of the intellect and the senses ;

II. Traditional (naqliyyah), acquired by way of tradition.
The contrast is thus that between, what we would call the
speculative and the historical sciences.

The traditional sciences are :

1. The literary or instrumental (aliyyah or lisaniyyah),

2. The sharTah sciences.

The shari'ah sciences are :

1. fundamental (asliyyah), pertaining to the

(a) reading of the Koran,

(b) interpretation of the Koran (tafsir),

2. deduced (mustanbatah) , comprising

(a) dogmatics (itiqadiyyah), i. e., the science of
the unity and the attributes of God, (kalam or
usiil-al-din, or al-fiqh al-akbar, or 'Urn al-tawhid

1 Cf. Ford'id, p. 2, fn.; also Savvas, chap, ii, p. 8.

28 MOHAMMEDAN THEORIES OF FINANCE

(b) the practical * ('amaliyyah) or fiqh sciences.
The practical or fiqh sciences comprise :

1. The science of the bases of fiqh ((ilm usul-al-fiqh) ,

2. The science of the applications of fiqh (film furue al-
fiqh, or simply fiqh).

Finally, fiqh relates to

1. human acts which are entirely a matter of divine rights
(huquq allah), namely, (a) prayers (saldt), (b) fast-
ing (sawm), (c) legal alms (sakat), (d) holy war
(jihad), covering war and peace, the latter including
the fiscal and other relations of the Moslem state to
its non-Moslem subjects, and (e) pilgrimage to Mecca;

2. human acts which are entirely a matter of private
rights (huquq cibad) ;

3. human acts of a mixed nature, namely, the tithe (fushr) .

1 By "practical", the doctors mean three different things: (i) That
which relates to practice, as opposed to what is merely academic. In
this sense, logic, practical medicine, and the science of tailoring, are
all practical, because they all relate to practice, either mental, as in the
case of logic, or physical, as in the case of the others. (2) "Practical"
in philosophy means the science of things made by man, as distinguished
from theoretical which means the science of things whose existence is
outside the reach of human power and will. In this sense, logic is
theoretical, because its subject-matter, the mental processes, is not a
human institution; fiqh is practical, because its subject-matter, namely,
human acts, is a matter of human will and power. (3) Applied to the
arts, " practical " refers to those whose mastery depends on experi-
ment and practice, as contrasted with "theoretical". In this last sense,
fiqh, syntax, logic, practical medicine are theoretical because their ac-
quisition does not depend on practice; the art of tailoring, however, is
practical. In the first sense practical is more general than in the sec-
ond, for while logic is practical in the first sense, it is not so in the
second. Likewise, practical in the second sense is more general than
in the third sense, because fiqh is practical in the second sense but not
in the third, since practice is not necessary for its learning. (For more
information on the divisions of science and on the so-called " eight
heads" (al-ru'us al-thamdniah) to which every author must conform,
see Tech. Diet., Introduction).

PRELIMINARY CONCEPTS 29

The second of these three classes, namely, the human acts
which concern individual rights alone, may be acts of

(1) the living (ahya'), that is,

(a) marriage and divorce (mun&kah&t),

(b) civil or commercial transactions (mu'dmalat),

(2) the deceased (amwat), that is matters relating to
inheritance ( far a' id ) .

It is thus seen that fiqh and usul-al-fiqh constitute the two
branches of the so-called practical sciences which are the
counterpart of the dogmatic, the two making up the deduced
shari'ah sciences.

The above table also points out the relative position of
Mohammedan finance. It will be observed that in the above
scheme, zakat, which comprises the taxes paid by the
Moslems, is a matter of religious obligation and is differ-
entiated from the taxes paid by the non-Moslems. The
latter come under the caption of " holy war." In other
words, the taxes paid by the non-Moslems are based on
the relation between conqueror and conquered, rather
than on that of the state to its citizens, or of God to His
worshippers, as in the case of zakat.

CHAPTER II

THE FIRST BASIS OF FIQH : THE KORAN

'1
THE word Koran literally means, reading, recitation. It

is technically called the Book, and is defined as " that which
has been transmitted to us (i. e., the Mohammedans) by
way of mutawatir, between the two covers of the holy
Mushafs (i. e., copies of the Koran collected and edited dur-
ing the calif ate of 'Uthman)." *

The Koran is the Holy Scripture of the Mohammedans
and, according to the doctors, consists of the very words
of God as they were revealed through the angel Gabriel 2
to the Prophet Mohammed during his prophetic career, at
first at Mecca and later at Medina.3 The different stages
of this career, as might be expected, find their reflection in
the Koran. Indeed the revelations contained in the Koran
may be usefully divided into two classes — those revealed
during the Prophet's stay in Mecca and those revealed after
his arrival in Medina.

Before the last event, Mohammed did not intend to teach
a new religion but, according to his own account of the
matter, merely to bring his people to the worship of the one
true God, whose commandments the Hebrew prophets before
him had preached to their peoples.4 Therefore, the

1 Tawdlh, p. 36.

1 For full details concerning the various views as to the actual way
in which Gabriel communicated the Koran to the Prophet, consult
Tech. Diet., pp. 1161 et seq.

3 Of. Gazali, p. 100.

4 Juynboll, p. 3.

THE FIRST BASIS OF FIQH: THE KORAN $i

verses revealed in Mecca, especially the oldest of them,
all enjoin upon the Meccans belief in the resurrection, the
last day of judgment, and the final reward or punishment
of human acts in the world to come.

After thirteen years of effort in Mecca, the Prophet had
utterly failed and was forced to give up home and kin-
dred and work among the tribes of Medina. This rupture
of the Prophet with his native city and kinsmen and his pact
at 'Aqabah with outsiders, under the existing Arabian so-
cial conditions, had political as well as religious significance.
Probably it was the identification of the movement with
pi >lidcal motives that was the most potent factor in bringing
about the phenomenal success of Islam in Medina during the
last ten years of Mohammed's life.

The Mohammedans call the flight of Mohammed from
Mecca to Medina Hi j rah (literally, flight) and have fittingly
chosen it as the beginning of their era. The Hijrah ends
the first unsuccessful period of Islam in Mecca and ushers
in the Medinian period during which it may be said that
Islam knew nothing but success. In this second period,
Islam was no longer the purely religious and passive little
group which it was in Mecca, but a vigorous religious and
political organization which could defend itself and was
eager to expand. What is more natural, therefore, than
that this great change in the material conditions of Islam and
the success, which it began to enjoy in Medina, should react
upon the very nature of the movement and be reflected in the
verses revealed during this second period ? There could not
be a more eloquent witness of this transformation than the
following quotation from the Arab historian of Mohammed,
Ibn Hisham : *

Before the pact of allegiance at 'Aqabah, the Prophet was

1 Ibn Hisham, p. 313.

32 MOHAMMEDAN THEORIES OF FINANCE

not permitted to go to war, nor to shed blood ; he was com-
manded [by God] only to call people to God, to be patient
under persecution, and to turn away from the ignorant . . .
but when the Quraysh [i. e., the Meccans] rebelled against
God, . . . denied His Prophet, tormented and exiled those
who followed Him, who believed in His unity and His
Prophet, and who clung fast to his religion, God permitted
His Prophet to fight and to revenge himself for their op-
pression, and tyranny.

The revelations of the second period, therefore, relate
principally to questions of war and internal organization,
such as spoils, zakat, marriage, inheritance, usury, transgres-
sions, etc. The general characteristic of these revelations is
that they are casual, for they were revealed as the circum-
stances required. They were never meant to be, and they
are not, a well-rounded system of law. They nevertheless
form one of the cornerstones on which the elaborate edifice
of fiqh has been gradually erected.

During the life of Mohammed the Koran was in a scat-
tered form, there being no complete collection of all the
revelations. As, however, many of the Companions of the
Prophet, who knew by heart shorter or longer passages of
the Koran, fell dead in battle after the death of the Prophet,
it was feared that some of the holy passages might be
forever lost.

The first successor of Mohammed in the leadership of
Islam, Abu Bakr, charged a young man by the name of
Zayd Ibn Thabit, who had formerly served as scribe to the
Prophet himself, to make a written collection of all the re-
vealed passages. Out of the existing notes, as they had
been inscribed on scraps of paper, palm-leaves, flat bones,
stones, etc., and by reference to the memories of reliable
persons, Zayd gathered together as many as possible of
the scattered revelations. The first collection was probably
intended for the personal use of Abu Bakr and received no
official character.

343] THE FIRST BASIS OF FIQH: THE KORAN 33

A truly official codification of the Koran was first made
during the califate of 'Uthman, the third calif. This
was undertaken as a result of disputes over the read-
ings of certain verses. The work was again entrusted to
the hands of Zayd Ibn Thabit, this time in collaboration
with several other persons. When they had completed the
work, 'Uthman ordered the destruction of all previous
Koran collections, and had copies of the new and offi-
cial Koran sent to the different provinces of the Moslem
empire. This collection of 4Uthman has come down to our
own times unchanged and is the only authentic text. Con-
cerning its genuineness no doubt can be entertained.1
Furthermore, it can be accepted as a complete col-
lection, at least as complete as was humanly possible.
The Shiites, chiefly a political sect, have always claimed
that the verses referring to the special sanctity of 'Ali,
the fourth calif, and his family were intentionally left out.
This accusation has no foundation in fact. For, if
such had been the case, the contemporaries of Mohammed
who were still alive would have seen to it that those verses
were included or have complained about their omission ; but
even the enemies of 'Uthman accepted his edition of the
Koran as absolutely authoritative, thus affording ample
proof of its genuineness.

The Koran text is divided into 114 chapters of unequal
length, arranged according to their length, the longest com-
ing first. A chronological arrangement would result in
very much the opposite order. Each chapter is called a
surah.2 Most of the surahs pertain to more than one sub-
ject. Each surah consists of a certain number of verses

1 Juynboll, p. 9.

* Juynboll, p. 9. A word of Hebrew origin meaning number, also a
number of written lines.

34 MOHAMMEDAN THEORIES OF FINANCE [344

called ayah (literally, sign, miracle). It is claimed that
every ayah is a sign of wonder.

The revelations contained in the Koran were not all re-
vealed on one occasion, but at long intervals and in response
to special needs. Mohammed by no means resorted to Divine
revelation in order to decide every case that came up for
solution. Tradition tells us that the Prophet, especially in
Mecca, only in extremely rare cases and upon the reiterated
requests of his most influential followers made up his mind
to ask God for a revelation. The case of 'Omar is cited
who had to apply several times before obtaining a revela-
tion.1 The Koran consequently is fragmentary and often
mystical in its sense, with frequent allusions to contemporary
events and persons, and can only be understood fully on the
basis of a complete knowledge of the circumstances which
surrounded its revelation. This fact explains the origin of
film al-tafsir, i. e., the science of the interpretation of the
Koran, and the reason for the many voluminous commen-
taries that were written upon it.

The commentaries on the Koran form an important part
of Mohammedan literature. They comment on the holy
text from every point of view, grammatical, literary, reli-
gious, legal, etc. Furthermore, they give the history
that attaches to each verse and go more or less fully into the
legal prescriptions that follow from it. There are also
commentaries compiled with one single purpose, e. g., from
the grammatical or the literary viewpoint alone. The more
favored are those dealing in a compact form with all of
these viewpoints. The one written by al-Baydawi is prob-
ably the most serviceable of all.

1 Hurgronje, " Le droit musulman ", pp. 5-6.

CHAPTER III
THE SECOND BASIS OF FIQH : THE SUNNAH

SECTION i
General Considerations

FROM the very beginning, the conduct of the Prophet
served as a standard as much as the Koran itself. In fact,
we have seen that the Koran was revealed to the Prophet
in the course of years, and that the Prophet, rather than
decide every case by applying to God for a revelation, would
solve many of them by his own proper judgment. Such
judgments were not respected the less on this account.

Mohammed was not only the transmitter of the Koran
but he also interpreted and completed it. The only dif-
ference between the ordinary expressions of the Prophet and
his revelations consists in the fact that, whereas the former
are divine in content alone, the latter are divine in form
also. According to the Mizan * the ground for this view
is afforded by the Koran itself in the verse : " and we have
revealed to you the exhortation (i. e., the Koran) in order
that you may explain to men what has been revealed to
them." The Prophetic conduct then is as important a
source of fiqh as the Koran itself, and indeed, when later
that the Koran in point of time, supersedes it.

The word sunnah literally means way, custom, habit of
life. Technically 2 it is defined by the canonists as utter-

1 P. 45-

* Sunnah has also another techincal meaning in reference to religious
duties, namely, that which is recommended although not obligatory.
See, chapter on Classification of the Shari'ah Values.

345] 35

36 MOHAMMEDAN THEORIES OF FINANCE [346

ances of the Prophet (other than the Koran) known as
hadiths? or his personal acts and acts or sayings of others
tacitly approved by him.2

A hadith is to be carefully distinguished from a sunnah,
although some jurists have claimed that they are identical.

Sunnah is the custom or mores, which was prevalent in
the Arabian community, with regard to a religious, social, or
legal matter. After the advent of Mohammedanism the old
customs of the Arabs were partly modified by the conduct
of the Prophet, and to a lesser degree, of his companions.
This change, however, only affected the content, for the
sunnah still continued as a rule of conduct. A hadith, on
the other hand, is a statement of the Prophet. A sunnah
may be embodied in a hadith, but is not itself a hadith.
Thus Ahmad Ibn Hanbal says concerning a hadith : " fi
hadha 'l-hadlth khams sunan," i. e.t " in this hadith there
are five sunnahs." It is also possible for a hadith to con-
tradict the sunnah.3

Opposed to the concept of sunnah is that of bid'ah, i, e.,
innovation, departure from the established sunnah. Just
as conformity to the sunnah is commendable, so innovation
is to be condemned. The Prophet has said : " the worst of
things are the newly made [i. e., contrary to the sunnah],
for such things are innovations, and every innovation is a
deviation from the right way, and every deviation leads
into the Fire."

Such a theory of social control, although expedient from
the standpoint of religious conservatism, naturally limits the
possibility of social readjustment. Later, the canonists were

1 The word hadith, literally means saying and may apply to a saying
of any person, but usually it means a saying of the Prophet unless
otherwise indicated.

2 Tawdih, p. 359-

•' Goldziher, M. Studien, vol. ii, p. n; cf. Taw&h, p. 362.

-547] THE SECOND BASIS OF FIQH: THE SUNN AH 37

compelled to modify it by the fiction that all innovations are
not blameworthy and that some may be praiseworthy. At
an early date Malik said about an innovation, " ni'mat al-
bid'ah hadha " i. e., " this innovation is good." 1

The theory that the sunnah is a supplement to the Koran
and even supersedes it in case of contradiction when later in
time, gave the sunnah a predominant position as a source
of law. Such a theory amounted to no less than a shifting
of the center of gravity from the Koran to the sunnah.
For it meant that if there were unintelligible or contradic-
tory passages in the Koran, or if the sunnah contradicted
the Koran, the decision rested with the sunnah.

These circumstances naturally served as so many induce-
ments to the unconscientious and the ambitious to invent
and circulate false traditions in order to support their
political or other schemes. As time went on and the Com-
panions of the Prophet began one by one to pass away, it
became relatively easier to put false traditions in circulation,
and the number soon became very large. Some were
even so unscrupulous as to ascribe to the Prophet state-
ments referring to litigations that had arisen after his death.
A certain Ibn Abu 'Awga confessed before his execution
in 155 H. that he had put in circulation 4000 false hadiths.2
In this matter of falsifications the /iadf£/t-teachers of Kufah
became especially notorious.

This zeal for circulating false hadiths, however, is to be
contrasted with the great caution which characterized the
Companions of the Prophet and other pious Moslems.3
The biographies of Ibn Sa'd offer us many a remarkable
example of this kind. E. g., people who had long been

1 Goldziher, M. Studien, vol. ii, p. 26.

1 Kremer, p. 481.

8 Goldziher, " Kampfe ", p. 860.

38 MOHAMMEDAN THEORIES OF FINANCE [348

in the company of 'Abdallah Ibn Mas'ud relate that they
scarcely ever heard him report a hadith, but when he did
so, his forehead perspired from anxiety, while his cane
shook in his hand, and even his dress betrayed the trembling
of his body. Furthermore, he qualified his statements with
all sorts of limitations. This was also true of the other
Companions. They were afraid that in repeating the words
of the Prophet they might unwittingly add to or subtract
from them.

This state of mind explains why in the beginning the
hadiths were not written down. For, if distortion of a
hadith in saying it was so dreadful, how much more so
in writing it. Therefore a hadith was not considered
canonical unless it was kept in memory and orally handed
on.1 This does not mean that writing was not used at all.
From the very first, writing was resorted to, but only as an
aid to the memory, and when a hadith was written, it was
destroyed as soon as committed to memory. Nevertheless
the writing down of hadiths became general early in the first
century of the Hi j rah.

The study and preservation of the hadiths had a great
fascination for the early Moslems, who often traveled long
distances to hear hadiths from a renowned teacher. The in-
struction and transmission of the hadiths in time developed
into a special discipline called film al-hadith, i. e., science
of the hadith. Its rules 2 were more or less exacting and

1 Goldziher, ibid., p. 862 ; cf. M. Studien, vol. ii, p. 196 ; Juynboll, p.
15 ; Kremer, p. 475.

1 The rules mentioned in the following sections represent the views
of the authorities on usul-al-Hqh (u$uliyytin) and do not always coin-
cide with those of the /tacfrf/t-teachers (mubaddithun) inasmuch as
the former are interested in the hadiths primarily as a source of law.
When there is a variance between them, the Shafiite authorities gen-
erally are likely to side with the hadith-tezchers and the Hanifites to
hold the opposite view. This is because the Hanifites emphasized the

349] THE SECOND BASIS OF FIQH: THE SUNNAH 39

formed some sort of a critical method to check and elimin-
ate the false hadiths.

There are six collections of hadiths in the making of
which it was attempted to be critical and to include only
reliable (sahih) hadiths. They were all compiled in the third
century of the Hijrah and are considered standard works.
They are denominated briefly as " the six books " (al-kutub
al-sittah) or the six sahihs, i. e., the six reliable collections.
Two of them,1 namely that by al-Bukhari (f 256/870) and
the one by Muslim (f 261/875) are especially esteemed.
The reason for this lies in the fact that by the time they
were compiled some of the most bitterly fought questions
had been almost settled and the structure of orthodoxy fairly
established. These two collections therefore represented
in a way the current views and found ready and general
acceptance. As in the case of the Koran, voluminous com-
mentaries were written on the sunnah, as well. Among the
most well-known is the commentary of al-Qastallani on the
sahih of al-Bukhari.

SECTION II

The Different Kinds of Sunnah with Respect to
Transmission

From the viewpoint of "continuity" (ittisdl), i. e., the
completeness of the chain of transmission from the last trans-
speculative elements in the law, whereas the Shafiites laid emphasis on
the hadiths. For full information concerning the science of badiths
see the Introductions in the commentaries of al-Qastallani and al-
Nawawi on al-Bukhari and Muslim respectively. The latter is on the
margin of the former. (Qastallani, pp. 2-46 and 2-60.)

1 The other four collections are those made by Ibn Majah (+273/
886), Abu Dawud (+275/888), al-Tirmidhi (+279/892), and al-
Nasa'i (+303/915). (Juynboll, fn. 2, p. 20; cf. Goldziher, M. Studien,
vol. ii, pp. 254 et seq.).

40 MOHAMMEDAN THEORIES OF FINANCE [350

mitter all the way back to the Prophet,1 the canonists have
distinguished four kinds of sunnah,2 the first three being
" continuous " and the fourth " discontinuous."

The "continuous" (muttasil) report (of the sunnah)
includes :

( i ) The Mutawatir. It is the report of a people numeri-
cally indefinite (la yuhsa fadaduhum) s whose agreement
upon a lie is inconceivable, in view of their large number,
reliability ('adalah), and diversity of residence.4 According
to one view, the name mutawatir applies only to the report
which inspires confidence by virtue of the large number of
its reporters. According to this view a report would not be
called mutawatir if its content is believed on other grounds,

1 Tech. Diet., p. 1507.

2 By sunnah here is meant only the sayings of the Prophet. The
doings of the Prophet are dealt with separately (Kashf, p. 679), but
the principles here mentioned must also apply to them, because the
only difference between the two would be, that in one case we have
the sayings of the Prophet, and in the other, we have the sayings of
the persons who witnessed the doings of the Prophet. The doctors, in
speaking of the different kinds of sunnah, speak of them advisedly as
divisions of the report (khabar) in order to include the reports of
both the sayings and the doings of the Prophet. (Cf. Tawdlh, p. 358;
Talwih, p. 359.)

•The Arabic word ah$a means, to count, reach the last number, col-
lect into an aggregate by numbering, comprehend (see Lane, under
has.a). According to the Talwih (p. 359) the expression la yuhsa
(meaning, cannot be collected into an aggregate by numbering) used
in the above definition means, it cannot be made a matter of record
(la yad-khul takht al-dabt), and in this sense it is opposed to qawm
tnahsiir, meaning, a body of people whose number can be made a matter
of record, for example, people congregated within four walls. The
Talwih further states that no definite number is required for the muta-
wdtir (cf. Kashf, p. 681). In other words, the expression la yuh$a
must not be taken to mean, too many to be counted.

* Taw$ih, p. 358 ; Pazdawi, p. 681 ; Shawkani, p. 44 ; Minhdj, vol. ii,,
pp. 77 et seq.; Tech. Diet., pp. 1471-2.

35 1 ] THE SECOND BASIS OF FIQH: THE SUNN AH 4I

e. g., when the report states a matter of axiomatic knowl-
edge (dariirah) or when it is believed on grounds of reason.1

Various conditions must be met before a report may be
classed as mutawatir. Only three of these are considered
necessary (sahlh) and are as follows : 2

(a) The number of the reporters must be large enough
to preclude ordinarily (ladah) an agreement among them to
spread a false report.3 Some attempted to fix a minimum
varying from as low as 4 up into the hundreds. According
to one view, the number required varies with the character
of the reporters, as well as the content of the report; the
number therefore need not be large, since even the report
of a single person, such as a prophet, may engender positive
knowledge; moreover, the report of a religious leader may
be worth more than that of 10,000 people, e. g., if the latter
pretended to report concerning God. It is exactly on this
account, the upholders of this view go on to say, that the
mutawatir has been defined by some doctors (muhaqqiqiln)
as the report of those who cannot ordinarily be lying,
whether one or more. This view is confirmed by what is re-
lated of al-Pazdawi, namely, that he, at one time, considered
as mutawdtirs reports originally transmitted by single Com-
panions, but later spread and reported by many.4 Accord-
ing to the Kashf 5 " the number is not confined to any
definite figure, but the mere fact that a number inspires
knowledge is a sufficient test of its adequacy . . . the proof
that the number is not confined to any one figure is that we
consider " a report as mutawatir without actually determin-

1 Shawkani, p. 44.

2 Tech. Diet., loc. cit.
8 Cf. Kashf, p. 681.

* Pazdawi's later opinion is the one according to which the muta-
wdtir has been first defined.
6 P. 681.

42 MOHAMMEDAN THEORIES OF FINANCE [352

ing a definite number, " for if we should impose upon our-
selves the knowledge of a number, we would not be ordin-
arily able to find a way " of ascertaining the true number,
since it is constantly changing and its determination is
humanly impossible.

(b) The reporters must base their reports on sense per-
ception. If, therefore, a great congregation of people
should report that the universe has been created, for ex-
ample, their report would not constitute a mutawatir.

The conditions which are not considered necessary
(fasid) are : that the reporters should be Moslems and just;
that they should live in the same locality and belong to the
same race and religion; or as the Shiites claim, that they
should include among themselves the " infallible " (al-
ma'sum) ; * or finally, as the Jews claimed, that they should
be people deprived of power (ahl al-dhillah), as these could
not conceivably agree upon a lie through fear of the
consequences.

How are we to tell that the conditions have been met?
Those who believe that the mutawatir does not engender
axiomatic (daruri) knowledge, hold that a report may not
be claimed as a mutawatir except after ascertaining that the
conditions have been actually met. On the other hand,
those who believe that the mutawatir engenders axiomatic
knowledge, hold that the mere fact that a report has in-
spired conviction is normally a proof that the conditions
have been met.2 According to the Kashf 3 the sufficiency

1 For example, the sect of Hisham Ibn al-Hakam believe that the
itndms or leaders of the Moslem community are infallible, in the sense
that they cannot commit a mistake or sin. (Bagdadi, p. 50.)

» Tech. Diet., loc. tit.

8 Loc. cit.

353] THE SECOND BASIS OF FIQH: THE SUNN AH 43

of the number of the transmitters is inferred, if their re-
port has inspired knowledge, for this indicates that the
number was complete before God.

What is the Value (hukm) of the mutawatir? The
majority agree that the mutawatir engenders positive knowl-
edge (yaqm) and that the person who denies this is a
profligate (saflh). Some said that the mutawatir is open
to doubt inasmuch as the report of each transmitter by itself
is liable to be false, but this is evidently nonsense and heresy,
since it would cast doubt upon the very existence of the
prophets and their miracles which we at present can learn
about only through reports.1 There is difference of opinion
as to whether the knowledge engendered by the mutawatir is
axiomatic (daruri) or merely inferential (istidlali, or
nadari). According to al-Taftazani,2 axiomatic knowledge
is that which occurs in the mind through intuition and not
as a result of reflective thought (nadar). Inferential is its
opposite.8

Those who claim that the mutawatir creates axiomatic
knowledge, support their view by the argument that, if it
were inferential, it would not engender knowledge in the
mind of children and the weak-minded, since the latter do
not possess the ability to make inferences.4 Their opponents
reply that the knowledge of the truth of a report, among
others, implies a knowledge of the normal impossibility of

1 Kashf, p. 683.

2 Tech. Diet., p. 882.

1 Axiomatic has also a more general meaning, i. e., the knowledge
which occurs in the mind independently of human will, such as a per-
son's knowledge of his pain and pleasure. In this sense, axiomatic is
opposed to " acquisitional " (iktisdbi) which applies to the knowledge
that requires some initiative on the part of the knower, as, for ex-
ample, in the case of perceptual or intellectual knowledge.

4 Minhdj, vol. ii, p. 80.

44 MOHAMMEDAN THEORIES OF FINANCE [354

an agreement upon a lie among the transmitters of that
report, as well as a knowledge of the absence of incentives
for such an agreement; but these are nothing but cases of
inference; hence the knowledge engendered by the muta-
wdtir is inferential. The first side answers that such pre-
liminary notions as are necessary are only incidental, and
occur in the mind readily without any special thought or
effort.

When the reports of several transmitters answer the
description of mutawdtir but differ from one another, only
their common meaning is considered mutawdtir.1

Examples of mutawdtir are the passages in the Koran,
and the sunnah concerning the number of prostrations, the
rates of zakat, etc.

(2) The Mash-hur (literally, widespread). This is a
report originally supported by a few individuals (dhdd),2
but later spread and transmitted by a numerically indefinite
people whose agreement upon a lie is inconceivable, these
people being the generations succeeding to the Companions.
In other words, it is necessary that the diffusion of the
report should have taken place in the first or second gener-
ation after Mohammed, not later. According to the or-
thodox view, the mash-hur stands higher than the " in-
dividual ; " and its non-acceptance entails error, but not
heresy.8 The mash-hur engenders conviction but not posi-
tive knowledge (yaqm).

(3) The "individual " report (khabar al-wahid). This
is the report transmitted by one or two or even more, pro-

1 Minhdj, vol. ii, p. 89.

2 Their number may be one or more provided it falls short of that
required for the mutawdtir. Some call the masli-hur mustafld, if there
were at least three individuals.

8 Pazdawi, p. 688.

355] THE SECOND BASIS OF FIQH: THE SUNN AH 4$

vided their number falls short of that required for the
mutawatir. The value (hukm) of this report is, that
though it does not establish positive knowledge, it creates
obligation for conduct. This is the Hanifite view. Some
claimed that it does not create obligation for conduct since it
does not engender knowledge, as conduct may be based on
knowledge alone. Conversely, some hadlth-iolk expressed
the view that the " individual " report engenders knowledge
since it creates obligation for conduct. The Hanifites sup-
port their view by evidences from the Koran, the ijma(
and reason.

The "discontinuous" report (al-khabar al-munqatf)S
This is the report in whose continuity of transmission, un-
like that of the former three reports, there is a break.

" Discontinuity " may be either formal (zahir) or real
(batin).2

(a) " Formal discontinuity." This occurs when the con-
tinuity of transmission is not complete all the way back to
the Prophet, as in the case of an unsupported report
(mursal) ,3 that is, when there is failure to mention the chain
of transmitters, as, for example, when some one says, " The
Prophet said so and so," without supporting (isnad) his
statement by saying " So and so related to us, on the au-
thority of so and so, on the authority of the Prophet." The
unsupported reports (mursal) of the Companions are ac-
cepted unanimously, since they are reputed to be based on
direct hearing (sima') from the Prophet himself. The un-

1 Taw fch, p. 367 ; Pazdawi, p. 722.
* Tawdih, p. 367.

3 According to the usage of the £ad»f/t-teachers, mursal means a re-
port, none of the transmitters of which has been mentioned; musnad
(supported) is used for the opposite. On the other hand, the report
is called munqatf, if only one transmitter is omitted, and mu'&al, if
more.

46 MOHAMMEDAN THEORIES OF FINANCE [356

supported reports of the second and third generations are
not accepted by al-Shafi'i, except when their " continuity "
is established in some other way. However, such reports
are considered by the Hanifites and by Malik to be superior
to supported reports (musnad). They are thought to be
superior because it is customary that the just man (W/),
when he is convinced about the truth of a report and its
support, omits the support and links it directly to the Pro-
phet, saying " The Prophet said; " but when he is not con-
vinced about it, he refers it to the person from whom he
heard it.1 Thus, a certain Hasan is reported to have said : 2
" Whenever four of the Companions agreed before me on
a hadlth, I used to ascribe it directly to the Prophet." Simi-
lar statements were made by others.

(b) " Real Discontinuity." This happens when the re-
port contradicts an evidence stronger than itself, such as,
for example, the Koran or the mutawdtir, or when there
is a defect in the transmitter (ndqil).

Contradiction, the first kind of " real discontinuity," may
occur in the following four ways: (i) when the report
contradicts the Koran; (2) when it contradicts the "es-
tablished sunnah " that is the sunnah based on the mutawatir
and the mash-hur; (3) when an "individual" report
has not reached the degree of mash-hur* in spite of the
fact that there is a general need for such a report; (4)
when it has been denounced by the Companions.

When it contradicts the Koran, the report is overruled
in every case. There is invoked for justification of this
overruling the following hadlth: "After my death the
hadiths will multiply; when therefore a hadlth is related to

1 Pazdawi, p. 724.

1 Kashf, ibid.

» Taqrlr, vol. ii, pp. 295-7; Talwlh, p. 371.

357] THE SECOND BASIS OF FIQH: THE SUNNAH 47

you, compare it with the Book of God and when it agrees
with it, accept it; but if it contradicts it, reject it." The
above view is the Hanifite one. The Shafiites have thought
differently. When the report contradicts the " established
sunnah," again it is overruled.1

Similarly following the opinion of al-Karkhi,2 an " in-
dividual " report is brushed aside when it has failed to
reach the degree of the mash-hur, or to receive recognition
by widespread use, — all this notwithstanding the fact that
there is a general need for the report, in that it relates to a
matter of frequent occurrence. For example, the hadith,
according to which the first verse of the opening chapter of
the Koran must be read aloud in prayer, is not considered
obligatory. The argument is that if the hadith were true,
it would not have failed to attain wide circulation or gen-
eral use, considering that it concerns a matter of every-
day occurrence like prayer. The mere fact that it remained
an " individual " report is a presumption of its unreliability.
However, the majority of writers on usul-al-fiqh, as well
as al-Shafii and all the hadlth-iolk hold that such " individ-
uals " are valid, if they otherwise conform to the rules.8

Finally, denunciation of the " individual " report by the
Companions is sufficient to cause its rejection.

The second kind of " real discontinuity " occurs when

1 It must be remembered here that when we speak of contradiction
between a report and the Koran, or between a report and the sunnah,
we mean specifically the "individual" report only, not the ntutawdtir
or the mash-hur. (Cf. chapter on Abrogation and Conflict of the Evi-
dences; also Pazdwai, p. 728.

8 Kashf, p. 736.

s Riad Ghali, in his dissertation on the sunnah (pp. 191-3) gives a quite
different version on this point. Unless it is due to the sources he used,
though this is unlikely, it must be the result of his misunderstanding of
the Arabic expression fi 'I balwa al-dmm used by the doctors in this
connection.

48 MOHAMMEDAN THEORIES OF FINANCE [358

there is a short-coming in the person of the transmitter,

namely: (i) when he is " unknown " (mastur), i. e., when
it is not known whether he is just or impious, although the
first three generations are an exception to this rule; (2)
when he is impious (fasiq) ; (3) when he has not attained
the age of, or is not endowed with, complete understanding,
as in the case of minors, the weak-minded (ma'tuh}, the
careless (muggaffal), and heretics (sahib al hawa).1

SECTION III

Qualifications Regarding the Transmitter as Such 2
The transmitter (al-rawi) is of two kinds, the " well-
known " (al-mafruf) and the "unknown" (al-majhul).
The " well-known " is one known to have transmitted many
hadithSj whereas the " unknown " is one who is not known
to have transmitted more than one or two hadiths.

( i ) The " well-known " transmitter. He is of two
kinds: the one who is also a faqih, besides being a trans-
mitter, and the other who is only a transmitter.

(a) The well-known transmitters who are also faqlhs.
As such are considered the first four Califs, 'Abdallah Ibn
Mas'ud, 'Abdallah Ibn 'Abbas, Ibn 'Omar, Zayd, Mu'adh,
Abu Musa al-Ash'ari, 'Aishah, and others. The hadiths re-
ported by these are accepted whether or not in accordance
with qiyas.

(b) The " well-known " transmitters who are not faqihs.
These are those who like Abu Hurayrah are reputed for
their justice and careful record-taking. The hadiths re-
ported by these are accepted if in accordance with qiyas.
In the contrary case they are abandoned, because these trans-
mitters, not being faqihs, may have taken a wrong record.

1 Taw&h, p. 372.

2 Tawdih, p. 362 ; Pazdawi, pp. 758 et seq.

359] THE SECOND BASIS OF FIQH: THE SUNN AH 49

If however, their reports are in accordance with one qiyas
and at variance with another, they are not abandoned.

(2) The " unknown " transmitter.

(a) If the salaf 1 have transmitted a hadith on the au-
thority of an " unknown " transmitter and testified to the
truth of this hadith, the hadith is then considered like those
of the non-faqlh " well-known " transmitters.

(b) If the salaf have desisted from denouncing the hadith
after its communication to them, it is like the hadiths of
the " well-known " transmitters, for silence when speech is
necessary is equivalent to assent.

(c) If some have accepted and others denounced it, and
at the same time trustworthy people have transmitted it on
his authority, it is accepted, if in accordance with qiyas;
though if not in accordance it is rejected.

(d) If his hadith has been rejected by all the salaf (mus-
tankar), it is abandoned.

(e) If it is not known whether the salaf have accepted or
rejected it (mustatir), the qiyas overrules it, and conduct
in conformity with it is not obligatory, but only permissible
(ja'iz).

SECTION IV

Conditions of Retention and Transmission *
RETENTION, (i) The transmitter must possess com-
plete understanding obtained only on coming of age.

(2) The conditions of retention (dabt) must be fulfilled.

These conditions are the proper hearing of a report from
beginning to end, as well as the thorough understanding of

1 Salaf means literally the predecessors, and technically (see Tech.
Diet.) those of the predecessors who are followed as authority, e. g.t
the Companions are salaf for Abu Hanifah.

* Tawfch, p. 376; Pazdawi, p. 758.

50 MOHAMMEDAN THEORIES OF FINANCE [360

its meaning, in addition to its retention until it is passed
on (add') to others. The perfection of retention is reached,
when the retention of the form and the literal meaning of
the report is coupled with a thorough understanding of its
legal meaning as well. The hearing (simac) is considered
proper when the /md^/M:ransmitter reads the hadith in the
hearing of the listener and the latter repeats it and then says :
" Is it as I have repeated it?" the teacher replying, " Yes."
Writing or delegation (risalah) is deemed equivalent to
actual addressing.

The retention may be effected by committing the hadith
or report to the memory, or to a record. In the beginning,
the former was regarded as the ideal way ('azlmah) ; but
later the second method came to supplant it.

TRANSMISSION. Some /md^A-teachers will not allow
transmission of the sense alone, but the majority of the
doctors hold the opposite view. Of course, they all agree
that literal transmission is to be preferred. The trans-
mission of the sense of the Koran is allowed only to
the mujtahid.

In the transmission of the sense the following points
must be borne in mind :

(a) If the sense is clear (zahir) the transmission is
allowed to the person who knows the language.

(b) If the sense is clear but the word is liable to have
another meaning as well, as in the case of a universal
((dmm) term liable to restriction (takhsls), or when there
is the probability of a metaphorical meaning, then the trans-
mission is allowed to the mujtahid alone.

(c) When a term may have several literal meanings
(mushtarak), or its meaning is hard to understand, or
mystical, only the literal transmission is allowed.

(3) The transmitter must possess justice ('adalah), that
is, he must refrain from the commission of capital sins

36l] THE SECOND BASIS OF FIQH: THE SUNN AH 5I

(kabirah) and must not persist in the commission of venial
sins (sagirah).

(4) The transmitter must be a Moslem. This require-
ment is because the fanaticism of a heretic might be apt
to prejudice Islam, and not as we might suppose because
all other religions do not uniformly prohibit lying.

SECTION v
The Impeachment of Hadiths

The impeachment (ta'n) of a hadith may originate with
the transmitter himself or elsewhere.

(1) When the impeachment originates with the trans-
mitter himself, it may be express or implicit. It is express,
when the person claimed to be the transmitter of a hadith
angrily repudiates the fact of his transmission, calling the
person who claimed it a liar, or when he contents himself
with a mere denial of his transmission. In the first case,
the hadith is considered by the majority as void, but opinion
is divided on the second case.1

It is implicit when; (a) the transmitter acts or counsels
in opposition to his own hadith. In such case the hadith
is null, unless it be that he had acted thus before trans-
mitting the hadith, or that the date of his transmission is
not known; (b) he acts according to some only of the pos-
sible meanings of the hadith. This amounts to the im-
peachment of its other meanings, (c) He neither acts in
accordance with his hadith, nor contrary to it. It is still
a case of impeachment, because to refrain from doing what
is commanded is equivalent to opposition to it.2

(2) When the impeachment originates elsewhere: (a)

1 Pazdawi, pp. 779 et seq. ; cf. Ghali, pp. 195 et seq.
1 Ghali, p. 205.

52 MOHAMMEDAN THEORIES OF FINANCE [362

it comes from the Companions. In such case, the hadith
is void, if in all probability it was known to them,
but it remains valid, if the probability is that it was un-
known to them, e. g., if the hadith referred to a chance oc-
currence; (b) it comes from the hadith-teachers.1

The impeachment of the /^ad^-teachers may be of two
kinds. It may be indefinite,2 and then it is not taken into
consideration. Or it may be based on a legally admissible
ground, and then the hadith is ruled out. It is necessary,
however, in this last case, that the accuser be not tainted
with party spirit and enmity, otherwise his accusation is
ignored. According to al-Pazdawi,3 the accusations of the
heretics against the Sunnites, and of the Shafiites against
some of the early Hanifites, have been set aside for this
last reason. According to the same author, there are about
30 to 40 legitimate ways of impeachment.4

Finally, when the hadith is impeached by some and
accepted by others, the hadith is not considered void, if the
number of its defenders is at least equal to that of its de-
nouncers, unless it be that the defenders are not acquainted
with the facts.5

SECTION VI

Are the Rules Concerning the Sunnah an Adequate
Guarantee of Its Reliability

It must be remarked at the beginning that the preceding
rules are ultimately intended for religious purposes, and

1 Pazdawi, p. 786; cf. Ghali, p. 207.

s For example, the accuser says, " This hadith is abandoned, or is
not authentic, or its transmitter is not just," etc., without explaining
the grounds on which he bases his impeachment.

8 P. 795.

4 Cf. Tawdih, pp. 378 et seq.; Taqrtr, vol. ii, p. 258.

6 Ghali, p. 213.

363] THE SECOND BASIS OF FIQH: THE SUNNAH 53

therefore they are subject to the limitations of all re-
ligious reasoning, no matter how scientific it may appear.
For instance, the rules in question have almost nothing to
say concerning the subject-matter of the hadlths. Thus
a hadith which claims the occurrence of things existing only
in the wildest imagination would be accepted as genuine,
if all the mechanical rules concerning its transmission were
conformed to, since no higher criticism would be exercised
as regards its content. It follows that a considerable ma-
terial of miraculous nature could easily find its way into
the sunnah. It further follows that hadlths invented with
the object of supporting political or other interests could be
readily incorporated in the sunnah, if only they were put
in circulation by prominent and influential persons, such as
the Companions.

Let us briefly inquire how far the rules mentioned in
the preceding sections would serve to check an accidental or
even an intentional falsification of the sunnah. First let us
examine the mutawatir and the mash-hur.

By definition it would seem as if the mutawatir were ab-
solutely above doubt. Even a perfunctory examination into
the conditions deemed necessary by the doctors will show
that this is not so. Theoretically speaking, the mutawatir
need not necessarily be superior to the mash-hur, or con-
ceivably, even to the " individual." This may, at first blush,
seem to be a preposterous assertion, but it will not be hard
to prove. According to definition, the only difference
between the mutawatir and the mash-hur is that the muta-
watir attained wide circulation from the time of the Com-
panions, whereas the mash-hur became widespread only in
the next two generations. In other words, during the life-
time of the Companions the mutawatir supposedly had a
wide circulation which the mash-hur lacked. But the entire
issue depends upon what the doctors mean by a wide cir-

54 MOHAMMEDAN THEORIES OF FINANCE [364

culation (tawatur), for if it could be shown that a muta-
watir may have been transmitted by as few transmitters
as a given mash-hur, the superiority of the mutawatir to
the mash-hur as regards the two given reports would forth-
with become imaginary. We have, in fact seen, that the
doctors have been unanimous in declaring that the number
of the transmitters of a mutawatir need not be a fixed num-
ber. They do not commit themselves to a minimum even
as low as 4. One report, as noted above, goes so far as
to ascribe to al-Pazdawi the view that the report of a single
Companion might spread and become a mutawatir. We need
not, however, make use of this extreme position. Accord-
ing to the orthodox definition, a report transmitted origin-
ally, e. g., by 10 or more, may be no more than a mash-hur,
or if it did not later attain great diffusion, merely an " in-
dividual," whereas one transmitted by fewer than 10 may
be a mutawatir. It is not then, so much the number of the
reporters, at any rate, the original reporters, that decides
whether a report shall be considered a mutawatir, but rather
it is the fact that a report appeals as genuine. If a report
is accepted, that very fact indicates that the number was
sufficiently large. Al-Bukhari, in the Kashf, plainly implies
that the mutawatirs were not so classed, because after a
special inquiry the numbers of their reporters were found
to be sufficient, but because in the first place they had ap-
pealed as genuine and received recognition. His justifica-
tion for it is that it is impossible actually to determine the
number because it is constantly growing. Besides, he finds
it unnecessary, for he assumes that God would not cause a
report to call forth conviction, had the number of its re-
porters been insufficient.

Clearly then a report classed as mutawatir might have
been originally transmitted by the same number or even
possibly a smaller number of transmitters, than a mash-hur

365] THE SECOND BASIS OF FIQH: THE SUNNAH 55

or even an " individual." The fact is that, the various re-
ports transmitted from the Prophet have not been accorded
hierarchical precedence, as statements of fact, on the basis
of a previous inquiry into the circumstances which sur-
rounded their transmission. On the contrary, this preced-
ence first appeared as a matter of usage, and only later after
some of the reports had already attained great diffusion,
has an attempt been made by the doctors to differentiate
them into classes. Viewed in this light, the difference be-
tween the mutawdtir and the mash-hilr reduces itself to one
of wide circulation, not so much during the earliest stage
of transmission by the Companions, but chiefly during later
stages. The reports which referred to matters of common
occurrence or general interest, or accorded with the current
views and practices, at once spread and became common
knowledge, whereas other reports less favorably circum-
stanced, did not spread so rapidly, or even at all. Of course,
the rapid diffusion of a report, in itself, constitutes a con-
siderable guarantee that the report is true, but as already
hinted, the diffusion and favorable reception of a report
might have been due to the fact that the report fitted in
with the current tendencies and practices. A mutawdtir
of this last type evidently would not be any more reliable,
as a statement of fact, than a report which being less for-
tunate became only a mash-hur, since the original trans-
mitters of both reports might have been as numerous or as
trustworthy.

It is therefore easy to understand the psychology of the
doctors who, on the one hand, imply that the number must
be large, and on the other hand, carefully avoid committing
themselves to any sort of a minimum. They were indeed
laboring under difficulties. They could not ignore the num-
ber of reporters and the matter of diffusion, for when they
made their classifications the main distinction among the

56 MOHAMMEDAN THEORIES OF FINANCE [366

different reports was the varying extent of their respective
diffusions. But they could not also ignore the fact that
some mutawatirs might have been originally transmitted by
no more transmitters than others, which they had classed
only as mash-hurs. Hence they only imply the matter of
diffusion, and as regards the actual definition of the extent
of that diffusion, in other words, the number of the trans-
mitters, they take refuge in indetermination by using the
ingenious expression la yuhsa.1 Thanks to this expression
they could always claim that the number might have been
larger than any given number, and in fact, as we saw, they
did not concern themselves with its actual determination.
This expression appears to have caused the doctors some
inconvenience, also, as would seem to have been the case
from the following quotation from the Kashf.2 " The
majority held the view that numerical indefiniteness is not a
necessary condition, for if the pilgrims or the congregation
of a mosque should report an event which kept them from
the pilgrimage or the prayer, their reports would still pro-
duce knowledge, although they may be definite in number."
If one is to believe the following quotation from the same
work, even the spiritual fathers of this as well as of certain
other expressions, providing for the Islam, justice, etc., of
the transmitters, did not seriously mean them, but rather
used them as a means to silence their opponents : " The
shaykh (i. e., al-Pazdawi) adverted to these meanings (i. e.,
the provisions concerning the indefiniteness of number, etc. )
because they are best fitted to remove all doubt and to
refute adversaries, not because they are real conditions ..."

As regards the " individual," this too, like the mash-hur,
theoretically speaking, may have been transmitted by as

1 Cf. supra, under Mutawdtir.

2 P. 681.

367] THE SECOND BASIS OF FIQH: THE SUNNAH 57

many original transmitters as the mutawdtir, the only differ-
ence in that case being their varying diffusion in later times.
But this is true only in theory. Doubtless in practice, the
"individual," which constitutes by far the greatest portion of
the sunnah, has been, generally speaking, transmitted by one
or few transmitters. But the " individual " is the report
which, in distinction from the two previous, is considered by
the doctors, as a report equally liable to be true or false,
according as its reporters are just or impious. It is there-
fore only to the individual that the rules set forth in the
previous sections concerning " discontinuity," transmission,
transmitters and impeachment, apply.

Are the rules concerning the " individual " sufficient to

check falsification? The answer can hardly be in the af-
firmative, since they almost entirely ignore the content and
are mainly concerned with the "continuity" of transmission
all the way back to the Prophet. A hadith is declared re-
liable if its chain of transmission is unbroken. But even
this simple rule is not always adhered to. Thus according
to the Hanifites and to Malik, the hadiths transmitted by the
first three generations may have a broken or no chain of
transmission.1 This view is justified on the ground that
the first three generations were just. Al-Shafi'i takes ex-
ception to this view as regards the last two generations.

The only rule which goes into the substance of the matter
at all, is that concerning the justice of the transmitters.
But the conception of justice is very mechanical. A man
is considered just, if to the knowledge of outsiders, he has
not committed one of the so-called capital sins. Moreover,
as regards the first three generations 2 it is not necessary
actually to determine whether even this minimum of re-
quirement has been met. They are assumed to be just.

1 Cf. supra, under " discontinuity."
1 Cf. supra, mastiir.

58 MOHAMMEDAN THEORIES OF FINANCE [368

The rules concerning the impeachment of hadiths are

not less subject to criticism. Even the fact that a person
angrily repudiates having transmitted a certain hadith, has
not been deemed sufficient cause for setting aside that
hadith. Then, too, one can always disregard an impeach-
ment on the ground that it has been actuated by partisan
motives. Finally, the requirement that a hadith must not
contradict the Koran or the " established sunnah " 1 -is not
a sufficient check, because not only would it apply to a very
small proportion of hadiths, but also, as we have seen, the
mutawdtir or mash-hur are not necessarily superior to the
" individual."

The foregoing discussion conclusively shows that, even
if we assume that all the rules have been obeyed, the mere
fact that a hadith has found a place in the approved col-
lections, the sahihs, by no means proves its genuineness.
Unless otherwise confirmed, there is always a theoretical
possibility that it might have been forged. The Moham-
medans themselves have recognized this possibility, since
most of them agree that the " individual " produces only
probable knowledge (zann),2 and since the majority would
discourage swearing on the truth of the sahihs excepting
those by al-Bukhari and Muslim. Compare also the fol-
lowing statement in the Tahdhib 3 by 'Omar Ibn Habib,
who in defense of the /todW/i-transmitters against im-
peachment, is supposed to have said to the Calif Harun
al-Rashid : " Were the companions of the Prophet liars, then
the [entire] shari'ah would become null (batil) and the legal
provisions (ahkam) [derived from it] should be rejected."
In other words, there was a certain reluctance in later times

1 Cf. supra, " real discontinuity."

2 Nawawi, on the margin of Qastallani, pp. 29-30.

3 Pp. 446-7-

369] THE SECOND BASIS OF FIQH: THE SUNN AH 59

to brand well-known /mdf//i-transmitters of the first three
generations of Islam, as liars, because of the fear, that if
this were allowed in principle, the evil might go too far.

It must be said in conclusion that the preceding consider-
ations represent only theoretical possibilities, and that the
question whether and how far these possibilities have be-
come actualities is largely a matter of how far the actual
circumstances offered inducements for making use of the
possibilities. Doubtless, the latter, relatively speaking, were
few and affected only a small proportion of the entire
sunnah. It may therefore be said that, in general, the
mutawatir is certainly superior to the mash-hur, and the
latter to the " individual," and that for the most part, the
collections of sunnah considered by the Moslems as canoni-
cal are genuine records of the rise and early growth of
Islam.1

1 C'f. Juynboll, pp. 16-19.

CHAPTER IV
THE THIRD BASIS OF FIQH : THE IJMA

THE first two bases of fiqh which we have already ex-
amined are called by the doctors the two " primary " evi-
dences of sharfah, as distinguished from the next two
evidences of ijma' and qiyas, considered in the last analysis
as solely derived from, and based on, the two former pri-
mary evidences of the Koran and the sunnah. But these
two latter sources are often involved and contradictory,
especially when they are referred to for the solution of
novel cases. What guarantee is there, then, that the law
has been rightly understood ? It is precisely the ijma' that
has enabled the canonists to get around this difficulty.
Ultimately, the other sources receive their final sanction
from the ijma'. It alone can put an end to doubt. When
the Mohammedan community has reached an ijmaf, that
is, a unanimity of opinion concerning a divine prescription,
its opinion is infallible.

The doctors have found justification for ijma' as a source
of law, both in the Koran and the sunnah. The Koran
says : " It is thus that we have made of you a nation of the
right mean " ; * and in another instance : " . . those who turn
away from the Prophet and who do not follow the way
of the believers." : What else can the way of the believers
be, it was argued, but the consensus of the Mohammedan
community ? On the other hand, the Prophet has said :

1 Chap. 2, verse 137. 2<Chap. 4, verse 115.

60 [370

371] THE THIRD BASIS OF FIQH: THE UMA 6 1

" My people (ummah) shall never agree on an error."
Al-Shafi'i justifies ijma' on the basis of a hadlth in which
the Moslems are enjoined to go with the community. He
explains that while isolated individuals are subject to error,
the Moslem community as a whole is immune.1

Some doctors have denied the legitimacy of ijma* on the
two following grounds: (i) It is impossible to ascertain
the existence of ijma', because the mujtahids, living at
any given period, cannot in fact be numbered, for among
them there are those who have not achieved fame, or even
possibly women who have reached the degree of ijtihad and,
being women, escape observation. Even granting that they
could be known and numbered, it is impossible to ascertain
the consensus of their opinions, since some may have spoken
contrary to their inner beliefs. (2) The famous hadlth
concerning Mu'adh does not mention the ijma' as an evi-
dence, and it would have certainly referred to it, if it
were such.2

Only later was this dogma of the infallibility of the
Mohammedan community raised by the canonists into an
elaborate piece of epistemological theory, after it had ex-
isted in practice for a very long time. For instance, in
the Risalah of Al-Shafi'i which is the first treatise on
usul-al-fiqh, the theory of ijma' is as yet far from being
elaborate : the whole chapter hardly occupies a page.8 The
first appearance of ijma' is probably to be traced in the city
of Medina, among the Companions of the Prophet. After
his death, they were the ones to decide all points of diffi-
culty, since they had had the " blessing " of companionship
and conversation with the Prophet and, so to speak, had got

1 Risalah, p. 65.

* From the Waraqdt, quoted in Goldjiher, D. Zahiriten, p. 33.

3 Risdlah, p. 65.

62 MOHAMMEDAN THEORIES OF FINANCE [372

into the spirit of the new religion. When, therefore, the
Companions could agree on a point, their consensus would
be accepted by the rest of the community as conclusive.
After the Companions, this leadership in religious matters
passed to the next generation, the so-called Followers
(tabi'un) and from them to the generation of jurists
and hadlth-teachers who followed them. When these
latter differed on a point, they naturally referred to the views
and practices of the Companions and Followers ; and if their
views and practices could be shown to have been un-
animous, their points would be made so much easier. What
is more natural, therefore, than that under such incentives
there should develop the theory of ijma' ?

The significance of ijma' in the Mohammedan law can
hardly be overestimated. By its means, not only is con-
troversy on many points forever done away with, but
also, when new situations have been met by analogy or
otherwise, the Moslems may be assured that they are not
getting away from the old basis and drifting into heresy.

Notwithstanding the unifying influence of ijmaf, there
remained indeed always a certain residuum of divergence
of opinion on some minor questions on which no consensus
could be attained; but this was construed by the canonists
to be an indication of God's grace to His people, for there
is an ijmaf on this very point too, namely, that such diverg-
ence is not to be deprecated, because it is a sign of God's
grace. This ijma' is based on the hadtth in which the Pro-
phet said : " The difference of opinion in my community is
an indication of grace from God's part."

Al-Sha'rani, who apparently dislikes the idea of having
in the shari'ah any divergence of opinion (khilaf) whatso-
ever, has taken the extreme position of claiming that, in
reality, there is no such divergence in the shari'ah', and he
attempts to prove his contention by the following ingenious

373] THE THIRD BASIS OF FIQH: THE IJMA 63

argument : The whole of the shari'ah provisions may be re-
duced to two categories, commandments and prohibitions,
each of which admits of a double construction, — one for
the case of want of excuse ('aslmah), and the other for the
case of excuse (rukhsah). The apparent contradiction and
divergence of provisions and views in the shari'ah, is then
only a consequence of the fact that while some of these
provisions and views refer to cases of want of excuse, others
refer to cases of excuse. The believer, however, should not
try to benefit from this situation by following the less rigor-
ous prescriptions which are only meant for cases of excuse,
when he possesses no real excuse.1

The various theories and views of the doctors concerning
ijma' may be briefly summed up as follows : 2

Ijma' is defined as " the consensus of the Mohammedan
mujtahids of any period concerning a shari'ah value."
This definition excludes both the non-Mohammedans and
the non-mujtahids.

The formal cause (rukri) of ijma*.3 The ijma' is re-
puted to have taken place whenever there has been a con-
sensus. The consensus may either be 'azimah or simply
rukhsah. The ijma' is said to be 'azimah when the
mujtahids have spoken with one another concerning the
opinion in question or acted according to it. The ijma' ,
on the contrary, is said to be rukhsah, when some have dis-
cussed or acted according to an opinion, and the rest have
kept silent, although the matter has been communicated to
them and there has passed enough time for consideration.
According to some doctors and to a report from al-Shafi'i,
the consensus is not deemed to take place when some of the

1 Mvzdn, pp. 4, 8 et seq.

2 Tawfch, pp. 425 et seq. ; Pazdawi, pp. 946 et seq.

8 Formal cause here is used in the Aristotelian sense.

64 MOHAMMEDAN THEORIES OF FINANCE [374

mujtahids have kept silent. The others reply that it is very
difficult for all the mujtahids to express opinions, neither
is it customary to do so. Moreover, they say, silence when
speech is necessary amounts to oral assent.

Who is eligible for ijma'? The opinion must be con-
sidered of every mujtahid who is not impious and hereti-
cal. It must however be remarked that a person need not
be a mujtahid if the matter to be determined by ijma( is
one that does not require judgment (ra'y), if, for ex-
ample, the matter to be decided is the transmission of the
Koran or one of the obligations considered fundamental
in all religions, such as the five prayers, and the zakat. For
an ijmaf to occur on these matters, it is necessary that both
the mujtahids (khawass) and the laymen (fawamm) should
reach agreement. Consequently, if one layman should dis-
agree on them the ijma would fail to occur, " but this has
never happened." 1 If on the other hand, the matter to be
determined is one that requires reflection and judgment,
such as, for example, the determination of the specific legal
provisions concerning sales and marriage, then it is neces-
sary that only the mujtahids should agree. The ijmaf
therefore would not be affected if some of the laymen should
disagree; as a matter of fact, " they do agree when all the
mujtahids have agreed upon a point." In this chapter we
are concerned only with the ijmac of the mujtahids.

Some have claimed that only the Companions qualify for
ijmaf. Others have said that the relatives (fitrah) of the
Prophet alone are entitled to this privilege. On the other
hand, Malik is said to have claimed this for the people of
Medina exclusively. But, according to al-Pazdawi, none of
these supplementary qualities are necessary, and all the
Mohammedans are equal in this respect.

1 Kashf, p. 959 ; Tawdih, p. 433.

THE THIRD BASIS OF FIQH: THE IJMA 65

The Conditions of Ijma'. The Hanifites hold that the
"lapse of the period" (inqirdd al-'asr), i. e., the passing
away of all those qualified to express an opinion on the
matter in question after their previous agreement upon it, is
not necessary, but Al-ShafVi claimed that they should all
pass away while persisting in their agreement. The Hani-
fites reply that, once the ijmd' is reached, any later addition
or change is not valid.

Some have claimed that the ijma' must not concern a
question already discussed by the Companions ; but, accord-
ing to a report from Muhammad Ibn al-Hasan (a disciple
of Abu Hanifah), the ijma' of every period on a point on
which the former generations have had divergence of
opinion is valid, provided that one of the views then debated
is accepted and confirmed, for there cannot be reached an
ijma' on a new opinion. However, concerning matters on
which there has been no previous controversy, an ijma'
may be arrived at on any opinion whatsoever.1

The value (hukm) of Ijma'. The value of ijma' is that
a legal prescription based on an ijma' is considered to be
positive (yaqln), and therefore, non-conformity with it
entails heresy. After the attainment of an ijma' on a
point, further controversy on that point is barred, and the
point becomes acquired forever, unless it be abrogated
(na-skh) in accordance with the following rules.

Abrogation of Ijma*.2 The abrogation of an ijma' is
possible only by another ijma' of a similar class. Thus an
ijma of the Companions can be repealed only by another
ijma' of the Companions; and likewise, the ijmd's of the
second generation may be abrogated by other ijmd's of the
same generation or of following generations, because the
ijmd's of generations later than that of the Companions are
all considered of the same weight.

1 Pazdawi, p. 967. 7 Pazdawi, p. 982.

66 MOHAMMEDAN THEORIES OF FINANCE [376

The Basis (sanad) of Ijma*. According to the majority
of the doctors, an ijmaf cannot be reached except upon
evidence, because to mention only one reason, in religious
matters, opinion without evidence is erroneous (khataf),
11 since evidence is what gets us to truth and without evi-
dence there would be no getting to it." Some said that the
ijmaf without authority, (i. e., one in which the constituent
opinions have not been based upon a shari'ah evidence) may
still be valid, because God would certainly lead His com-
munity to the right view, and because, if it were necessary
that the ijma' should require authoritative justification,
there would be no longer any use for the ijmaf as an inde-
pendent evidence. The other side replies that this is not true,
since the Prophet himself did not speak except through in-
spiration or by deduction from the divine revelations, and
that therefore it behooves the community that it should pre-
ferably speak on the basis of evidence. Furthermore, they
say, it is necessary that there should be evidence, since
opinion based on prejudice or conjecture is proper only to
heretics. Finally, they deny that there would no longer be
any use for ijmaf as an independent evidence, because, as
they point out, upon the reaching of an ijmaf further
controversy on the point is not allowed, since the ijmaf
establishes the point in a way that does not admit of
doubt. Consequently, the authority or evidence for the
opinions which make up an ijmaf may be a probable
evidence (dalll zanni) such as qiyas; or it may be an " in-
dividual " report; or it may be a positive evidence, such as a
verse of the Koran or a sunnah of the mutawatir type.
The Zahirites, Shiites and certain of the Mu'tazilites have
claimed that the only valid basis for an ijma' is positive
evidence.

The Transmission of Ijma*. This is subject to the same
rules as that of the sunnah.

CHAPTER V
THE FOURTH BASIS OF FIQH : THE QIYAS

SECTION I

General Considerations.

A hot controversy had to be waged before qiyas or legal
analogy was generally admitted to be a lawful means for
establishing shari'ah values. There is no doubt that from
the time of Mohammed analogy was resorted to in order
to provide for the solution of cases which were left un-
settled by the two revealed sources of the Koran and the
sunnah. That such was the case is amply proved by the
hadiths invoked by the upholders of qiyas, as will be seen
below. Besides, this is also what reason would lead one to
expect, for what can be more natural than to judge by
analogy rather than to dismiss a case, when the texts fail ?

Of course in the earliest period, no special rules as yet
had developed concerning the use of analogy and the latter
was practised in a loose way, varying from person to person
according to temperament, and so offering more or less
free scope for the play of personal opinion. However, as
this new principle was practised in an informal way, no
one realized its significance. But presently the conditions
changed. Islam in the meanwhile quickly spread beyond
the limits of Arabia, northward into Syria, and eastward
into Mesopotamia and 'Iraq, where, owing to the peculiar
agricultural and social conditions, it met with private-law
377] 67

68 MOHAMMEDAN THEORIES OF FINANCE [378

relations essentially different from those of Arabia. How
could the Mohammedan judges decide matters for which
the Arabian social and legal traditions offered no parallel
whatever? They necessarily had to use their personal
opinion in the form of qiyas, though always trying to follow
the spirit of the sacred texts.1

This material factor in the growth of Islam occasioned
two distinct tendencies in Mohammedan law. The
jurists of Medina and Mecca, living in the cities in which
Islam had had its origin and early development and which
were saturated with hadith-assotiztions, laid emphasis on
the preservation and study of the hadiths, and in deciding
legal questions they referred to them as their standard.
This they could easily do, because the cultural and legal
conditions under which those hadiths had been uttered by
the Prophet still remained practically the same and so the
hadiths and local customs would be sufficient to decide the
legal questions that might arise, without resorting much
to the use of analogy.

But it cannot be said that this was true of the jurists of
the conquered countries outside of Arabia, especially of
'Iraq. In 'Iraq the conditions were different and the jurists
who lived there, being away from the home of the hadlth-
lore and facing new situations, from the very first used and
had to use personal opinion (ra'y) much more extensively.
They were therefore called ra'y =f oik (ahl-al-ra 'y) , in dis-
tinction from the jurists of Hijaz who were known as the
hadith-folk (ahl-al-hadith) .

This difference in tendency between the two groups of
jurists grew to be more and more marked as time went on
and eventually culminated in the famous controversy be=
tween the hadith-folk and the ra'y=folk. Unfortunately

1 Goldziher, d. Zahiriten, p. 6.

379] THE FOURTH BASIS OF FIQH: THE QIYAS 69

the historical sources do not throw enough light on the dif-
ferent phases of this struggle but nevertheless some of them
may be determined.

Thus it is fairly certain that until Abu Hanifah's ap-
pearance upon the scene, the opposition between the two
sides was mild ; it assumed the form of a violent controversy
only after Abu Hanifah's epoch-making innovation. This we
may infer since there are no hadiths to the contrary, and
since all the existing hadiths refer to Abu Hanifah and his
disciples as the persons at whose door the blame should be
laid for introducing into the law the non-revealed new ele-
ment of personal opinion (ra'y). This innovation of Abu
Hanifah, which launched the controversy, consisted in his
attempt to codify the Mohammedan law, for the first time
using qiyas avowedly as a basis.

So long as the use of qiyas was not given a formal re-
cognition, but was resorted to occasionally when judgments
were rendered, no controversy broke out. It was, however,
a very different matter when Abu Hanifah openly declared
qiyas to be a legitimate basis of law, and proceeded to
codify the law using qiyas as one of his bases. This was an
unmistakable challenge and the hadith-fo\k accepted it. Ap-
parently the hadlth-iolk were willing to allow the use of
qiyas, if it were to be applied in an informal way when the
situation called for it, but disliked to have qiyas put down
on paper as a principle of legislation. Thus according to
the Mizan? Mujahid is said to have told his disciples : " Do
not write down on my authority the opinions I give — only
the hadiths are written down — for I may revoke tomorrow
all the opinions I form today."

One great reason why there was such bitter opposition
to qiyas, was because qiyas was identified with ra'y (per-

1 P. 47.

70 MOHAMMEDAN THEORIES OF FINANCE [380

sonal opinion).1 It was thought that the use of qiyas
would result in the setting aside of the revealed texts to
make room for ra'y. But in the eyes of the conservative
hadlth-folk the use of ra'y was almost as bad as unbelief.
Thus, al-Sha'bi said : "Ra'y is like carrion; you use it as food
only when you are in extreme need of it " and in another
instance, " May God curse ' a ra'ayta ' ", ' a ra'ayta ' being
the formula used in introducing a question for a legal opin-
ion. Ja'far al-Sadiq said : " The greatest test that shall be-
fall the Moslem community will be the people who will de-
cide (yaqisuna) matters by their opinions (ra'y) and will
forbid what God allowed and allow what God forbade." :

The two features peculiar to the use of ra'y which the
hadith-folk disliked most, seem to have been, first, the
habit of the ra'^y-folk to imagine unreal cases in order to
determine their legal solutions; and, second, their scholastic
subtleties. This may be seen in the epigrammatic ridicule
heaped on Abu Hanifah by the poet Musawir,8 and in the
following quotations. Thus Hafs Ibn Giyath said about
Abu Hanifah : "He is the most informed of people on things
that have not existed and the most ignorant of people on
things that have existed." Likewise, Malik, when asked
whether he had seen Abu Hanifah answered : 4 " Yes, I
saw a man who, if he told you that he could make this
column into gold, would do it by his arguments." In the
same spirit al-Shafi'i said : " I liken the ra'y of Abu Hanifah
to nothing but the rope of a witch, who stretches it in one

1 Al-Shafi'i considers ijtihdd and giyds as identical (Risdlah, p. 66, 1. 3;
cf. also Kashf, p. 988).

8 Mizdn, p. 46.

8 Agdni, vol. xvi, p. 169.

4 Abu '1 Mahasin, p. 404.

381] THE FOURTH BASIS OF FIQH: THE QIYAS ji

direction, and you see it yellow, and stretches it in another
direction, and you see it red." *

The hadith-folk, on the contrary, had no liking for ab-
stract speculation, but would only concern themselves with
concrete cases. One of them, Masruq, when a question
was put to him, would say, " Has the case already hap-
pened ? ", and if answered in the negative, would remark,
" Then let me alone with the answer until the case shall have
really happened."

In order to discredit the methods of the ra'y-folk, the
hadith-iolk invoked many hadiths supposedly uttered by
the Prophet in condemnation of the use of ra'y. Moreover,
they claimed that ra'y was synonymous with hawa, meaning
a rash opinion formed under the influence of passion and
prejudice. However, this is not true, because in common
parlance, the word meant just the opposite.2

In identifying qiyas with ra'y in this controversy, the
hadith-folk have really injured their cause, since the re-
cognition of qiyas as established by Abu Hani f ah would
only curb the use of independent opinion (ra'y) rather than
foster it, as they feared. Formerly there were no strict
rules concerning the exercise of personal opinion, and the
personal views of the judge might easily color his reasoning.

1 Goldziher, d. Zahiriten, p. 20.

The successive changes in the meaning of the word fiqh (literally,
judgment, understanding), originally a synonym of ra'y, singularly re-
flect the phases of the conflict in question. Thus fiqh was first used in
the sense of interpreting the revealed texts (Goldziher, d. Zahiriten, p.
19) ; then it was contrasted with hadith, as in the expression " conver-
sant with the hadith and the fiqh" (ahl-al-badith wa 'l-fiqh) ; al-Shdfi'i
uses 'Urn to denote the knowledge of the revealed sources ; finally,
after the subsiding of the controversy, we find fiqh used to mean the
science of law in general, and therefore, in order to distinguish the
science of hadith in particular, the expression fiqh al-hadith, i. e., the
fiqh of hadith, is used.

72 MOHAMMEDAN THEORIES OF FINANCE [382

After the introduction of qiyas the reasoning of the judge
was limited by the rules of qiyas which kept it more with-
in the scope of the revealed sources. The best proof for
this is probably afforded by Abu Hanifah's own action when
he introduced a new principle to supply the need which
resulted from the limitation of personal opinion due to the
introduction of qiyas. This new principle, which consisted
in the free use of personal opinion in the place of qiyas
when public necessity would call for such a procedure, is
called istihsan.

Taken all in all, this controversy was largely a matter of
quibbling over words, for, as a matter of fact, both sides
made free use of personal opinion,1 although one must
admit that the hadlth-iolk would exhaust the possibilities
of their system before committing themselves to the use of
qiyas. Thus it is related of Ahmad Ibn Hanbal, that he
used to say : "A weak hadith is better for us than the ra'y
of people." 2 Hafs Ibn 'Abdallah al-Nlsaburi (f 209, H.)
is said to have boasted that during a judgeship of 20 years
he never once used qiyas. But he must have been an ex-
ception. Abu Hanifah, on the contrary, had no such dread
of qiyas and would use it rather than countenance an
hadith of suspicious origin. This difference of attitude
towards the use of qiyas, accounts for the small number of
hadiths said to have been used by Abu Hanifah, as con-
trasted with the 28,000, or more, alleged to have been
accepted in the Musnad of Ahmad Ibn Hanbal.

It is no surprise therefore that qiyas has been admitted
into most of the schools that were recruited from the ranks
of the hadith-folk, and formed the by-products of the con-
troversy. The person who took the first step in this di-

1 Cf. Goldziher, d . Zahiriten, p. 36 ; Mizdn, p. 53, 1. — 9.
* Mizdn, p. 50.

383] THE FOURTH BASIS OF F1QH: THE QIYAS 73

rection and who is chiefly responsible for the clearing-up
of the situation and the ending of the controversy, is al-
Shafi'i, the founder of the Shafiite school. Notwithstand-
ing that he was reared in the center of the hadith-lore, he
came out squarely for the lawfulness of qiyas, though he
was very careful to state in his Risdlah, the first treatise
on usul-al-fiqh,1 that qiyas must be strictly based on the re-
vealed sources, and the ijmd,'.2 However al-Shafi'i strongly
condemned the principle of istihsan. Yet he could not dis-
pense with a principle which should act as a safety valve in
cases of emergency, any more than Abu Hanifah could.
So al-Shafi'i was forced to introduce the principle of
istishab, and to allow greater latitude in the determination
of the " effective " cause ('illah) for purposes of qiyas.

The Malikite school fared no better than the others, for
it, too, has adopted an analogous principle, the istislah.

We are now ready to examine the various principles and
rules concerning the use of qiyas, which have been elabor-
ated 3 by the followers of Abu Hanifah, like al-Pazdawi,
and al-Karkhi, and which may be found in all the treatises
on usiil-at-fiqh.*

The definition of qiyas is " to extend [ta'diyah] the
[shari'ah] value from the original case [asl] over to the

1 According to the Tah-dhib (p. 60), the Risdlah was written by re-
quest and approved by all.

J Risdlah, pp. 65, 66, 69, 82.

8 It must not be thought that the detailed principles of qiyas as we find
them in the treatises on us.ul-al-fiqh have all been elaborated by Abu
Hanifah. Probably he did not do more than lay down a few working
principles, and the rest were completed by his successors. This is borne
out by the fact that the treatises on us.ul-al-fiqh, only very seldom (cf.
Taw&h, p. 469, where a certain view is ascribed to Abu Hanifah), in-
dicate the persons responsible for the opinions cited, or else ascribe
them to later doctors, like al-Pazdawi, al-Karkhi, and al-Marlsi.
(Kashf, pp. 1014, 1020, 1021, 1023, 1035.)

4 Tawdlh, p. 444 et seq. ; Pazdawi, p. 986 et seq.

74 MOHAMMEDAN THEORIES OF FINANCE [384

subsidiary [far'}, by reason of an 'effective' cause
\fillah] which is common to both cases and cannot be
understood from the expression [concerning the original
case] alone." * For example, if a certain act (asl) has
been prohibited in the Koran or the sunnah, other acts
(far') common with that act in regard to the " effective "
cause ('illah) for which the prohibition has been decreed,
are likewise prohibited. It is necessary, however, that the
acts to which the value is extended, should not be included
in the meaning of the prohibitory expression, explicitly or
implicitly, for in that case they would be prohibited by
virtue of the prohibitory expression itself, and not by virtue
of qiyas thereon.

According to al-Pazdawi,2 the justification of qiyas is
that " all the Companions of the Prophet and all the Fol-
lowers as well as the righteous people [salihun] and the
theologians have unanimously agreed that qiyas, through
use of personal opinion [ra'y] on the basis of the shari'ah
principles " in order to decide undetermined cases, is a law-
ful source of law. The Zahirites, who were hadith-iolk, and
others, held that qiyas is not a legal evidence (hujjah) and
that action upon it is null and void. Some of them based
their dissent on the ground that qiyas, being a case of exercis-
ing reason, may not constitute evidence. Others contended
that while reason may constitute evidence in intellectual
matters it may not do so in shari'ah matters. Still others
maintained that resort to reason should be only in cases
of emergency and that no such emergency could be said
to exist in the case of qiyas t since qiyas could be substituted
for by istishdb-al-hal.

According to the Kashf 3 the whole dispute about qiyas

1 Tawfch, p. 444.

1 P. 990. s P. 990.

385] THE FOURTH BASIS OF FIQH: THE QIYAS 75

turned on the following two points: (i) whether qiyas
was lawful in intellectual matters; and (2) whether it was
lawful in shari'ah matters. The Kashf goes on to say that
all the Companions and the Followers as well as the ma-
jority of the jurists and theologians considered qiyas law-
ful in both cases ; that, among others, all the Shiites and the
Kharijites allowed the use of qiyas only in shari'ah matters;
and that the Hanbalites sanctioned its use only as regards
the applications of fiqh, in view of the need for it in cases
concerning which the Koran was silent, but denied its law-
fulness as regards the determination of intellectual matters.
The opponents of qiyas argued in detail as follows : x

(1) From the Koran: 2 " We have sent down to you the
Book, as an explanation for every thing." To consider
qiyas as an additional evidence would be to consider the
Koran insufficient.

(2) From the sunnah: the Prophet said: " The affairs of
the sons of Israel have continued to prosper until there multi-
plied among them the children of the war captives, for these
have measured (qasii) what did not exist on the basis of
what did exist, and so they have erred and led others into
error."

(3) From reason: there is doubt about the "effective"
cause ('illah) for which a sharl'dk value has been estab-
lished, because the revealed texts do not mention the causes,
and consequently one cannot know what to use as a basis
for qiyas. Furthermore, God is not worshipped according
to the dictates of reason. Are there not in fact, divine
prescriptions which cannot be grasped by human under-
standing, as for instance, the " stated quantities " (muqad-

1 Cf. Tawfch, p. 446.

2 Chap. 16, verse 91.

76 MOHAMMEDAN THEORIES OF FINANCE [386

darat) such as the number of prostrations in prayer; and
are there not prescriptions which even contradict reason ?
To these the defenders of qiyas answered as follows :

(1) From the Koran:1 " Consider, oh ye possessors of
eyes," and consideration here means the comparison of
things similar.

(2) From the sunnah: 2 " The had'iths proving the legi-
timacy of qiyas are innumerable." Thus when Mohammed
sent Mu'adh to Yaman, he asked him what principles he
would use in administering justice. Mu'adh answered that
he would decide upon his personal opinion (ra'y) in case
no provisions were to be found, either in the Koran or the
sunnah. Upon this the Prophet said : " Thanks to God
that He has directed the delegate of His Prophet to that
opinion in which the Prophet of God finds pleasure."
Again, when the Prophet sent Abu Musa to Yaman, he said :
" Judge upon the Book of God, and if you do not find in it
what you need, upon the sunnah of the Prophet, and if
you do not find in that, then use your own opinion." More-
over, the conduct of the Companions, and their conversa-
tions and discussions bear this out still more forcibly. In
fact, it is established by mutawatirs 3 that they used qiyas,
especially in their councils on the matter of succession,
where

each spoke using his own opinion until the matter was
finally settled according to what 'Omar said in the way of
opinion and qiyas, when he remarked, "Are you not going
to be satisfied as regards worldly matters, with the man with
whom the Prophet was satisfied as regards matters of re-
ligion ? ", and they agreed upon his opinion notwithstanding
the fact that the question of succession

1 Chap. 59, verse 2.

2 Pazdawi, p. 998.
8 Kashf, p. 1000.

THE FOURTH BASIS OF FIQH: THE QIYAS 77

to the call fate is of the utmost importance. Again, when
the Companions held a council, for determining the penalty
of the wine-drinker (sharib), 'Ali said: " When one drinks
he gets drunk, and when he gets drunk, he raves, and when
he raves, he accuses falsely," hence the same penalty must
apply to the drinker as to the false accuser.

(3) From reason: l the allegation that it is not allowed to
establish values on the basis of probable evidence is not
valid, for in matters which human understanding cannot
grasp, probability is sufficient for purposes of conduct.
" Besides," they said, " do you not yourselves use qiyds
to determine the direction (qiblah) of the Ka'bah, or to fix
the amount of damage to be paid for destroyed property?"
The other side replied that these cases were exceptional,
because the original obligation, (for example, the thing
destroyed), could no longer be discharged per se, and be-
cause these cases related to individuals' rights (huquq fibad).
Moreover, there was a possibility of determining them by
means of the senses and reason, for instance, through a
journey, or the positions of the stars.2

SECTION II

Is it Lawful to Investigate the " Effective " Causes of
Divine Prescriptions f a

We have seen that qiyas is the extension of a sharfah
value from the original case (asl) (concerning which a
prescription has been revealed) to a new case, because the
latter has the same cause as the former. In other words,
no use of qiyas can be made before the specific cause of a
prescription has been actually determined. Take, for in-

1 Taw&h, p. 450.
8 Taw&h, p. 447.
3 Pazdawi, p. 1013 et seq.; Tawfcb, p. 464-

7S MOHAMMEDAN THEORIES OF FINANCE [388

stance, the prohibition of usury concerning the six articles,
namely, gold, silver, corn, barley, dates, and raisins. Now,
if it can be found that the specific cause (fillah) of the
prohibition is a certain feature of these articles, say, their
being measured by weight, then all other articles measured
by weight would also be covered by the prohibition. Such
an inquiry into the " effective " causes of the divine pre-
scriptions is called by the doctors ta'lil al-usul. There have
been different views concerning the legitimacy of such a
procedure.

One view is that the divine prescriptions do not possess
an " effective " cause except when there is evidence to that
effect. The people who hold this view argue that the de-
termination of the cause of a divine prescription is like
the use of the metaphorical meaning of a word, instead of
its proper meaning, but that is allowed only upon evidence.
Besides, if each attribute (wasf) were taken as a separate
cause, what one attribute included another would exclude,
and if all the attributes together were taken as one cause,
they would be combined only in the original case (mansus-
falayh), thus barring the use of qiyas. On the contrary, if
one of the attributes is set down as the causal one, it in-
volves doubt, since some other one may have been the cause.
For instance, if every one of the qualities possessed by the
six articles above mentioned is considered as a separate
cause of the prohibition, then one of these qualities, for
example, being a foodstuff, would bring under the pro-
hibition apples, also a foodstuff, but would exclude plaster,
whereas the attributes of being measured by volume or
weight (qadr) 1 and being a genus (jins) would give a
different result. Again, if all the qualities taken together
are considered to be the one single cause of the prohibition,

1 Tech. Diet., p. 1179.

389] THE FOURTH BASIS OF FIQH: THE QIYAS 79

then only the six articles mentioned would be the prohibited
ones, and the door of qiyas would be closed, since no other
articles would combine all those qualities. Finally, if only
one of the attributes were taken as the cause, there is no
guarantee that some other attribute is not the cause. Con-
sequently, unless there is special evidence to indicate which
attribute is the causal one, the best thing to do is to refrain
(waqf) from attempting to determine the cause.

A second view is that every attribute which can possibly
be regarded as a cause, and to which a value may properly
be attached, is considered a cause except when an express
statement (nass) or ijma' points to the contrary. The
people who hold this view insist that every attribute may be
an actual cause, excepting when there is an obstacle; for
example, when the various attributes contradict one an-
other, or when there is an express statement or ijma' to
the contrary. Their argument is that qiyas is one of the
evidences of the sharl'ah, that its evidential function would
have been defeated if each attribute had not been considered
as a separate cause, and that there is no reason for not so
considering it, unless there is a real obstacle. Thus, they
grant that all the attributes together cannot be considered as
a single combined cause but, they say, it is quite possible to
consider each attribute as a separate cause, and it is not true,
as has been claimed, that this involves contradiction, since
they would allow it only in so far as there is no contradic-
tion involved.

A third view is that the divine prescriptions do have
causes, but that the right thing to do is to determine only
one attribute as the " effective " cause of a prescription, pro-
vided that the attribute singled out as the causal one is so
designated by a specific evidence. The people who hold
this view argue that since all the attributes together may
not be a single cause, (as this would make qiyas impossible) ,

go MOHAMMEDAN THEORIES OF FINANCE [390

it becomes clear that one of the attributes must be the causal
one, unless there is evidence that more than one attribute
are causes; but as it is not known which of the attributes
is the causal one, there is need for a specific evidence to
designate one as the distinctly causal attribute. Apparently
this is the view of al-Shafi'i. However, his disciples held
that the proper conduct concerning the divine prescriptions
was to accept (ta'abbud) them with devotion, and not to
attempt to determine causes.

A fourth view, the generally accepted Hanifite view,1
is that the prescriptions are presumed to have a single cause
which must be determined, unless there is an obstacle to its
determination, as for example, in the case of prescriptions
concerning " stated quantities " (muqaddarat) with respect
to ritual and punishments. However, one may not proceed
to determine the cause of a prescription, unless there is
previous evidence to show that the prescription actually has
a cause ; and even then a further evidence is needed, in order
to determine which of the several attributes is the cause of
the prescription. The argument for this view is that all
divine prescriptions do not have a cause, and that a specific
evidence is needed to show that the prescription in question
actually has a cause. Some Hanifites held that there is
no need for such specific evidence when there is already
evidence to show which of the attributes of the thing pro-
hibited is the causal one, since evidently a prescription can-
not have a causal attribute and yet not have a cause.

SECTION III

How to Determine the " Effective " Cause

We have seen that most of the doctors have agreed that
not all the attributes of the thing forbidden or recommended

1 Tawdlh, p. 465 ; Kashf, p. 1014.

39I] THE FOURTH BASIS OF FIQH: THE QIYAS gl

may be considered as causal, whether taken together or singly,
but that only one or more of them are the causes. These
particular attributes must be determined by some evidence,
because all the doctors agree that one may not at random
hit upon some of the attributes as the causal ones.1

According to the majority of the doctors, in order to be
the cause for a prohibition or permission, an attribute,
must be "convenient" (munasib), that is, it must be
such that, when joined with the value, it would re-
sult in the accruing of a benefit or the removal of a dam-
age, the benefit and the damage viewed from the stand-
point of the shari'ah. Fasting, for example, is useful
to mankind from the standpoint of the shari'ah, in subduing
the animal nature, though harmful from the medical view-
point.2 According to the Kashf * the attribute is " con-
venient," if it is like the attributes considered " convenient "
by the early Moslems, " who used to consider as causes
those attributes which were proper to the values." Again,
according to the Kashf, Al-Gazali held that an attribute is
" convenient," if the connection of the value to it would
lead to a useful purpose (maslahah) ; for example, in the
case of the prohibition of wine-drinking, the " convenient "
attribute is the property of wine to destroy reason. Accord-
ing to others, that attribute is " convenient " which appeals
to reason as the proper one.4

Besides being " convenient," the attribute must also
be " effective " (mu'ath-thir) if its use for qiyas is to be
obligatory (wajib), but it is valid (sahlh) to apply a qiyas
on the basis of an attribute which is only " convenient,"
without being "effective."5 According to some of the

1 Kashf, p. 1070. ' Talwih, p. 473.

1 P. 1072. 4 Shawkani, p. 200.

4 Talivib, p. 475 ; Kashf, p. 1073.

82 MOHAMMEDAN THEORIES OF FINANCE [392

Shafiites,1 the attribute need not be " effective," but it is
sufficient if it occurs to one's mind that it is the one
needed. However, in this case, as a matter of precaution
one should also refer to the sources (usul), in order to make
sure that no contradiction to them has been incurred. On
the other hand, some Shafiites said that this reference to
the sources is to be made first, and if the attribute used as
causal is found to contradict no principle of the sources, it
is considered as the cause.

The Hatiifites, by saying that the attribute must be
"effective," mean that in the Koran, the sunnah or the
ijmac this very attribute or another of the same genus
(jins), should have been indicated as an " effective " cause
for the very value (hukm) in question or another value of
the same genus.2 By genus, here is meant the proximate
genus (jins qarib).

The doctors have distinguished four types of " effective-
ness " (ta'thlr):*

(i) The very same attribute has been indicated in the
sources as " effective " cause for the very same value.
This almost amounts to an application of the original pre-
scription, since the only difference between the two cases
is that the attribute in one case qualifies one object, and in.
the other case another object. It is no wonder, therefore,
that this kind of qiyas is often accepted by its very oppo-
nents. An example of this qiyas is the following : if it has
been established that the cause of the prohibition of usury
as regards dates is their being measured by volume (kayl),
then without any doubt plaster would be like dates ; and if,
on the other hand, the cause is their being a foodstuff, then

1 Pazdawi, p. 1074.
* Shawkani, p. 203.
8 Taw&h, p. 478 ; Kashf, p. 1073.

393] THE FOURTH BASIS OF FIQH: THE QIYAS 83

raisins would be like dates. Here, in both cases we have
the very same attribute and the very same value, namely,
being measured by volume, or being a foodstuff, on the
one hand, and prohibition for reason of usury, on the other
hand.

(2) The very same attribute has been indicated as
" effective " cause of the genus of the value; for example,
in inheritance the attribute of being a full instead of a
half brother is a cause of the value of precedence. By
analogy, the very same attribute is made cause, this time
not of the very same value, i. e., precedence in matter of
inheritance, but of another value of the same genus, namely,
precedence in guardianship (wildyah) in marriage, preced-
ence in both inheritance and marriage being a genus of right.

(3) The genus of the attribute has been indicated as a
cause of the very same (fayn) value; for example, when
a person has to settle (qada') many debts of prayers (salat)
which he has failed to perform in their right times, by
analogy, he is released from these debts if he has fainting
fits. The analogy is based on the fact that both insanity
and menstruation (hayd) have been considered in the
sources as " effective " causes for the very same value,
namely the cancelling of the obligation of prayer. In other
words, the doctors have considered as cause of the value,
not one of the two mentioned excuses or attributes, already
indicated in the sources as causes, but another attribute of
the genus of those two attributes, namely, fainting. This
sort of attribute is usually called mula'im.

(4) The attribute whose genus has been indicated as
the cause of the genus of the value. This is usually
called al-munasib al-garib. An example of this is the can-
celling by analogy of the obligation of performing the

P. 478.

84 MOHAMMEDAN THEORIES OF FINANCE [394

prayers for cause of menstruation (hayd), because an at-
tribute of the same genus, namely being on a journey, has
been indicated already as cause for a value of the same
genus, namely the cancelling of the superfluous two prostra-
tions in prayer. Here, from the standpoint of perform-
ing the prayer, having menstruation or being on a journey
are a genus of "inconvenience" (mashaqqah) , while the
cancelling of the prayers and the cancelling of the super-
fluous prostrations are a genus of alleviation of the law.

The reason why the Hanifites require that the attribute
besides being " convenient " must also be " effective," is
because, " the attribute while being ' convenient ' may at
the same time not have been in and of itself, (bi-dhatihi)
the cause ('Utah) of the value, but simply considered as
cause by the sharl'ah." To the contention of the opposite
side that one cannot understand and feel that a certain at-
tribute is the effective cause of a prescription, al-Pazdawi
retorts that one observes causation in the physical world,
both in language and perception, as for example, when one
says, " He broke it and it was broken," or " He beat him
and he was hurt," or when one sees the result (athar) of
the act of the builder in the building,2 and so by inference
one can observe causation in the shari'ah also. Take, for
example, the prophetic hadlth to the effect that she-cats
(hirrah) are not impure because they are " from those
who are around " people all the time. Clearly, in this
hadlth, the attribute of being around all the time is con-
sidered to be the cause of the cleanness (taharah) of she-
cats. In other words, the law regarding the residue of
water or food touched by she-cats is alleviated, because of
the great difficulty of guarding against their touching the

1 Pazdawi, p. 1078.
* Kashf, p. 1079.

395] THE FOURTH BASIS OF FIQH: THE QIYAS 85

food, since they are around all the time. There is, there-
fore, necessity (darurah) to consider the food touched by
she-cats as clean, just as there is necessity to eat a dead
cqrpse when on the point of starvation.

Of the above-mentioned four types of qiyas, the first
three are admitted by all the upholders of qiyas to be law-
ful, but there is dispute as to the fourth. However, it also,
is lawful in the generally accepted view (mukhtar) because
it expresses more than mere probability (zann).v The first
three types are called mula'im and the fourth garlb.

The Hanifites who hold that in order for a qiyas to be
wajib, the attribute must be " effective," reject as unlaw-
ful the kind of causes designated as tardi ('Hal tardiyyah),
which are used by others and are not " effective." 2 The
people who use this last type of causes, namely the so-called
ashab-al-tard, retort and say, that it is not necessary that
the " effectiveness " of an attribute (ta'thlr al-wasf) should
have been indicated in the sources, but that the mere con-
comitance (ittirad) of the value and the attribute is an evi-
dence on the part of the sources (shahadat al-asl) that the
attribute is the cause of the value; and further, that it is
not true that the early doctors (salaf) have always applied
the qiyas on the basis of " effective " causes. The argu-
ment of these people is that qiyas is valid on the basis of
every attribute, and that each one of the several attributes
is assumed to have been expressly stated (nass) ; for ex-
ample, if wine has been forbidden, it is as if every one of
the attributes of wine has been expressly forbidden; that
the so-called shari'ah causes (rilal) in reality are not causes
of the values which attach to them, but simply signs
(imarah) of them, the real cause of all values being God

1 Kashf, p. 1074 ; Talwib, pp. 477-8.

2 Kashf, p. 1085 ; Talwih, p. 485.

86 MOHAMMEDAN THEORIES OF FINANCE [396

the Almighty ; that therefore one need not look for evidence
that they are the " effective " causes.1

We need not examine here the various other methods
used by small and less known groups. Let it suffice to
describe only two of them, (i) The method of tard or
dawran, which consists in considering an attribute as cause
of the value, simply if every time the attribute was present
or absent, the value also was present or absent, irrespective
of whether there is an indication in the context to show
that the attribute was meant to be the cause of the value.
(2) The method of masalih mursalah or istislah used by
the Malikites. This consists in considering an attribute as
causal, although there may be no evidence to show that it
was either approved or disapproved by the shari'ah.2

SECTION IV

The Conditions of Qiyas 3

There are four conditions of qiyas :

(1) That the value (such as prohibition) which is about
to be extended to a new case, should not be expressly limited
to the original case. Thus while the testimony of Khu-
zaymah, by himself, is legal evidence, it may not be argued
by way of qiyas that the testimony of another single individ-
ual would likewise be accepted as legal evidence.

(2) That the value of the original case should not have
been itself against the rules of analogy. Such is supposed
to be the case, either when the mind cannot understand
the value in question, such as for example, the number of
prostrations in prayer; or when it is against the laws of

1 Pazdawi, p. 1086.

1 Cf. supra, Other Principles of Legislation ; for more details see Tech.
Diet., pp. 1366-1372.
8 Pazdawi, pp. 1021 et seq.; Taw&h, p. 451.

397] THE FOURTH BASIS OF FIQH: THE QIYAS 87

qiyas, as when fasting is not invalidated by eating through
inadvertence, although qiyas would require that the fast
should be considered broken by every thing that enters the
body. It may not be therefore argued that because eating
through inadvertence does not break the fast, by analogy,
eating by mistake or accident, also should not break the fast.
(3) That the value whose extension to a new case is
sought, should be a shari'ah value established by virtue of
the Koran, the sunnah, or the ijma*, but not another qiyas:
that the value in the process of transition to the new case
should undergo no change; that the new case be similar
to the original case in the quality to which the value at-
taches; and finally, that concerning the new case (far')
there should have been no separate prescription (nass).
Ibn Shurayh, the Shafiite, and others have held that
qiyas is allowed also in case of names. For instance,
they have argued that because grape juice is called wine
whenever it has reached the stage of fermentation, the name
wine may be applied to any drink which is in a similar stage,
for example, to the drink nabidh. The majority of the
doctors however, have objected to the application of qiyas
in matters of terminology, because there is no connection be-
tween the name of a thing and the thing itself, and so noth-
ing can be pointed out as the cause of a name. But qiyas
is allowed only in cases where one can determine a cause.
An example of the second requirement is the following.
Because eating through inadvertence during the fast does not
legally break the fast, the Shafiites have argued by analogy
that eating by mistake (khata') or by threat, also must not
break the fast. The Hanifites replied that inadvertence
(nisa') is a natural shortcoming against which a person can-
not guard, but mistake and threat may be avoided by excess
of care or by appeal to the government. Therefore, applying
the value (in this case, nullity ascribed to the act of eating

88 MOHAMMEDAN THEORIES OF FINANCE [398

through inadvertence) to the other two acts would be chang-
ing it, for it would have been attached to avoidable acts,
while it is intended to apply only to unavoidable acts like
those due to inadvertence. This case is also an illustration
of the third requirement, namely that the qualities to which
the value attaches (inadvertence, on the one hand, mistake
and threat, on the other) should be similar, but evidently
they are not in this case, because the former is unavoid-
able and the latter two are not so.

(4) That the application of qiyas, should not result in
the altering of a prescription (nass), because this would
be altering the divine prescription on the basis of personal
judgment. An example of this is found in the case of
false accusation, which by express prescription is a perma
nent bar to the acceptance of one's testimony. Al-Shafi'_
has argued by qiyas, that because the person punished for
other great sins (kabirah) upon repentance may be heard
as a witness, in the case of false accusation also repentance
should remove the bar to the acceptance of testimony. The
Hanifites have replied that the application of qiyas to false
accusation would amount to altering the divine prescription
(nass) which declares that the false accuser shall be forever
barred from rendering testimony.1

lKashf, p. 1051.

CHAPTER VI
ABROGATION AND CONFLICT OF THE EVIDENCES

WHEN there exist in the shari'ah two evidences, one of
which refutes what the other establishes, the following cases
are possible. ( I ) Both evidences are of equal strength, but
one is later in time; (2) both evidences are of equal
strength, but it is not known which is the later; (3) one
of the evidences is stronger by virtue of a secondary dif-
ference; (4) one of the evidences is stronger by virtue of
an essential difference. The first case involves abrogation
of one evidence by another; the second is a case of conflict
without preference; the third is one of conflict, with pre-
ference (mu'aradah ma'-al-tarjih) ; the fourth properly
speaking, is really not a case of conflict or preference, for
these terms are used only when the two evidences are of
equal strength.

FIRST CASE: ABROGATION (NASKH) *

Abrogation is the occurrence in the sharfah of an evi-
dence of later date than another already existing, establish-
ing the opposite of what the earlier one does. The fact that
the later evidence seems to mortals a reversal of the
earlier is simply because the first evidence was indefinite
(mutlaq) as to time limit, and consequently was presumed
by them, owing to their ignorance, to be eternal. In reality,
the occurrence of an abrogatory evidence denotes only that
the eternal law-giver had decreed for the first evidence a

1 Tawdlh, p. 408; Pazdawi, p. 874.
399] 89

90 MOHAMMEDAN THEORIES OF FINANCE [400

certain time limit finally revealed and made known to
mortals by the fact of abrogation.

Abrogation is granted by the Mohammedans in distinction
from the Jews who deny it. There have also been Moham-
medans who denied it; but al-Pazdawi thinks that such
persons may not properly be called so.

Inasmuch as abrogation is nothing but the revelation of
the time until which the repealed evidence was to be valid,
only those evidences may be abrogated which are in them-
selves capable of time limitation. Hence the following are
not subject to abrogation: (i) provisions concerning the
divine attributes of the Creator, which having existed for-
ever, are not capable of non-existence; (2) a provision con-
nected with a circumstance which negates the possibility of
time limitation; for example the Mohammedan sharl'ah
in its entirety can never become abrogated, because the
circumstance of Mohammed's being the last of the prophets
negates the possibility of its abrogation. Furthermore, the
abrogating provision must be later than the abrogated, both
of them being sharl'ah provisions. Hence the suspension
of religious duties because of infirmity or death does not
constitute a case of abrogation.

There are other conditions which are not unanimously
agreed upon, some of them being as follows : that the two
provisions be of the same genus (jins) ; that there must be
some substitute for the repealed provision ; that the abrogat-
ing provision must be less rigorous than the one abrogated ;
that a provision cannot be repealed before enough time has
passed for persons subject to the law (mukallaf) to show
their faith (tamakkun min al-iftiqad) , although it is not
necessary, as some claim, that the time should be long
enough for the actual carrying out of the provision. The
divine command to Abraham to slay Isaac is a case in point.
According to some, it is a case of abrogation, because there

40i] ABROGATION AND CONFLICT OF EVIDENCES 9I

passed enough time for Abraham to show his faith, but
according to others it is not a case of abrogation.

Only the Koran and the sunnah may be abrogators
(nasikh). There may be four ways of abrogation: abro-
gation of Koran by Koran, of Koran by sunnah,1 whether
of the mutawatir or the mash-hfir kind,2 of sunnah by
Koran, and of sunnah by sunnah. Al-Shafi'i has maintained
that the abrogation of the Koran by the sunnah, and vice
versa, is not valid.

As regards the ijma', some Hanifites and the Mu'tazilites
held that the ijmaf can repeal the Koran and the sunnah.
According to the majority of the doctors, however, this
cannot be, since ijmaf is unanimity of opinion and opinion
may not set a time limit to the prescriptions of the shari'ah.
Besides, if the ijmaf occurred after Mohammed's time, it is
unanimously admitted that there cannot be abrogation after
that time, and if it occurred in Mohammed's time, inasmuch
as there could not then be an ijma', except upon his opinion,
it would not really be a case of ijmd(, but of sunnah.

Finally, as regards qiyas, it evidently may not repeal the
Koran or the sunnah, since its function is to extend their
prescriptions to cases lying outside the prescripts of the
Koran and the sunnah. Some held the opposite view.

SECOND CASE: CONFLICT WITHOUT PREFERENCE

(MU'ARADAH)S

When there is a conflict between two verses of the Koran,
or between one verse and a pair of verses, or between one

1 According to the Tawfch (p. 416), the sunnah does not abrogate the
text of the Koran "but only its legal value (hukm), for the Koran
and the sunnah are alike only from the viewpoint of being an evidence
for values, but not in form also, since the Koran alone is divine in
form."

1 Tawdlh, p. 417.

1 Tcrwfch, p. 531 ; cf. Pazdawi, p. 796.

0,2 MOHAMMEDAN THEORIES OF FINANCE [402

sunnah and a pair of sunnahs, or between one qiyas and a
pair of qiyases, it is a case of conflict between equals, since
strength does not consist in number, and consequently the
single verse, sunnah, or qiyas is not necessarily set aside to
make room for the pair.

In the event of a conflict, if between qiyases, one or the
other is preferred according to one's convictions. If, how-
ever, the conflict is between two verses or two readings of
the Koran, or two sunnahs, whether sayings or doings of the
Prophet, or a verse and a sunnah,1 and it is not known
which of the conflicting evidences is the later in time,
(otherwise it would be a case of abrogation) one proceeds
as follows: if it is possible to reconcile them, by reference
to their value (hukm), subject-matter, or time, it is done,
otherwise, the conflicting evidences are set aside, and other
evidences are referred to. For example, if the conflicting evi-
dences are verses of the Koran, reference is made to the
sunnah and, if no provision is found in the sunnah, to qiyas
and the sayings of the Companions. Similarly, if the con-
flict is between two sunnahs, then qiyas and the sayings of
the Companions are referred to. In going from the sunnah
to qiyas and the sayings of the Companions, two courses
are possible. According to those who place the sayings of
the Companions before qiyas in every case, reference is
first made to the sayings, and if no provision is found in
them, to qiyas. But according to those who hold that the
sayings of the Companions, in regard to points that can be
established by qiyas, are nothing but qiyases, one may refer
on such points to either, according to his convictions.

There cannot be a conflict between the ijma* and another
decisive evidence (dalil qat'i), namely, the Koran and the

1 It is only the sunnah of the mutawdtir and the mash-hur type that is
meant here, for the " individual " can never conflict with the Koran or
the other two kinds of sunnah.

403] ABROGATION AND CONFLICT OF EVIDENCES 93

sunnah, since a valid ijmdf may not be reached in contra-
diction to them.

THIRD AND FOURTH CASES I CONFLICT OF EVIDENCES UN-
EQUAL BY VIRTUE OF A SECONDARY OR AN ESSENTIAL
DIFFERENCE

The inequality may be in the content or in the support
(main wa sanad). Inequality in the content arises when
the proper sense of a word is contrasted with its meta-
phorical, or the explicit sense is contrasted with the implicit,
etc. Inequality in the support happens when the mash-hur
is compared with the " individual," or the report of the
transmitter who is a faqih is compared with the report of
a transmitter who is not a faqih, or a qiyds which is based
on a cause ((illah) expressly stated in the sources is con-
trasted with one whose cause is only hinted at. In case
of inequality, the stronger evidence is always preferred to
the weaker, for example, the mash-hur to the " individual."
The laws of determining the stronger evidence in each case
have been carefully defined by the doctors in the treatises
on usiil-al-fiqh.

CHAPTER VII

OTHER PRINCIPLES OF LEGISLATION
SECTION I
Istihsan 1

WE have been examining so far the four bases of fiqh,
namely the sources of law which are accepted by all of the
four important orthodox schools as lawful, and which
constitute, as it were, the sources par excellence. There
are however other principles of legislation accepted by only
a few of them, which need to be briefly explained.

Foremost among these principles is istihsdn, advocated
by the Hanifites alone. The word means literally, to
hold something for good, right. According to the treatises
on usiil-al-fiqh, istihsan technically denotes the abandon-
ment of the opinion to which reasoning by analogy (qiyas)
would lead, in favor of a different opinion supported by
stronger evidence. Such a departure from qiyas, may be
based on evidence found in the sunnah, or the ijrna', on
necessity (darurah) , or on what the upholders of qiyas claim
to be another kind of qiyas which, though it does not so
readily occur to the mind as the first qiyas, in reality is
stronger than it.2 Departure f rdm qiyas in the three former

1 Pazdawi, p. 1122 et seq.; Tawdih, p. 493 et seq.

2 In the usage of writers on usul-al-fiqh, istihsdn generally means this
last kind of istihsdn, namely, the istihsdn based on another qiyds,
whereas in the books on fiqh it denotes the former three kinds. As we
are concerned with questions of u^ul-al-fiqh, istihsdn shall mean the
istihsdn of the fourth kind, unless otherwise indicated.

94 [404

405] OTHER PRINCIPLES OF LEGISLATION 95

cases is held by all four schools to be legitimate. For ex-
ample, salam (sale of future goods for present cash) and
location (ijarah),1 though both contrary to qiyds, being
sales of non-existing goods, have been justified by the
sunnah; or istisnd' (placing an order with an artisan), al-
though contrary to qiyds for similar reasons, has been justi-
fied by ijma'.

However, departure from one qiyas in favor of another
qiyas, that is, in favor of istihsan, has been a subject of
hot controversy and bitter attack, especially on the part of
al-Shafi'i, and his disciples. This attack has been justified
by the allegation that istihsan is no more nor less than a
setting aside of the revealed sources in favor of the personal
opinion of the canonist. The Hanifites have strongly
denied this accusation. Thus the author of the Kashf 2 ex-
presses himself on the matter as follows:

Some of the false accusers among the Moslems have at-
tacked Abu Hanifah and his disciples because they aban-
doned qiyds for istihsan, and said, " The shari'ah evidences
are the Book, the sunnah, the ijma', and the qiyds, and the
istihsan is a fifth principle recognized by Abu Hanifah
alone "... and it is related of al-Shafi'i that he exagger-
ated in denying istihsan, for he said, " Who uses istihsan
places himself in the place of God as legislator," but all this
is attack without examination . . . and learn that the op-
ponents have not blamed Abu Hanifah for the istihsan
based on evidence in the sunnah, or the ijma', or on neces-
sity, for the abandonment of qiyds on these evidences is
granted by all unanimously, but they have blamed him
only for the istihsan based on opinion, [but it is not true
that this latter istihsan is based on opinion, since] according

1 Location is considered as a case of sale of non-existing goods be-
cause the benefits from the use of the object leased accrue only in the
future.

3 P. 1123.

96 MOHAMMEDAN THEORIES OF FINANCE [406

to us it is only one of two qiyases, and not a different thing
invented by way of passion and without evidence. Doubt-
less when two qiyases oppose each other one of them must
be preferred [for conduct in accordance with it] when a
preference is possible, and [the qiyas preferred] is called
istihsan, in order to indicate that it is the better fitted of the
two [for conduct in accordance with it] in that it is stronger
than the other qiyas.

Another doctor, al-Pazdawi, says : *

Inasmuch as according to our school the cause is a cause
for the value, we have named that which is weak, qiyas,
and that which is strong istihsan, meaning by it that it is a
more commendable qiyas, and we have preferred the second,
even though it is non-apparent, to the former which is ap-
parent,2 for importance belongs to the strength, [of causal
" effectiveness "] and not to its appearance. Do they not
see that this world is apparent, and the next world non-
apparent, and yet the non-apparent is preferred by virtue
of the strength of its " effectiveness," that is, its perman-
ence, eternity, and excellence, and the apparent [i. e., the
present world] is abandoned for the weakness of its " ef-
fectiveness " [athar] ? Likewise the qiyas lapses when it
is in conflict with the istihsan?

1 P. 1126.

8 The Hanifite doctors, who claim istihsdn to be a kind of qiyds, in
order to avoid confusion distinguish it from the qiyds, whose laws we
have already examined, by calling the former apparent (/a/t), and the
istihsdn non-apparent, (khafi) qiyds.

8 The Tawdih (p. 493) has the following to say on this matter:
" Some people have denied the validity of conduct on the basis of
istihsdn, because of ignorance about it; for if they oppose the name,
there can be no discussion on terminology, and if they oppose the mean-
ing of it, it is nonsense similarly, because by istihsdn we (i. e., the
Hanifites) mean an evidence of the number of evidences unanimously
accepted (such as the sunnah, etc.) which occurs in opposition to the
apparent qiyds, . . . and there is no sense in denying it ; in fact, such
opposing evidence may be either a swnnah, ... or finally a non-appar-
ent qiyds. ..."

407] OTHER PRINCIPLES OF LEGISLATION 97

In order to pass judgment on the merits of the case put
forth by each side, we must examine first what is really
meant by istihsan, and then inquire into its actual working
in one or two cases.

The Hanifites are profuse in saying that, what they
mean by istihsan, is that one of two qiyases which, al-
though somewhat more obscure than the other, is preferred
because it is stronger in its causal " effectiveness." They
further add that the mere fact that it is called istihsan, a
contraction of the expression qiyas mustahsan, meaning
" the qiyas which is preferred," indicates that it is a case
of choosing between two qiyases and not of introducing a
new principle, as the Shafiites claim.

A close inquiry into the treatises on usul-al-fiqh will dis-
close that the word istihsan is not used to indicate only the
qiyas that has been preferred but that, on the contrary, the
name applies to some new kind of a principle — a principle
different from qiyas, at least as the latter has been under-
stood by the doctors — which is called istihsan, whether or
not it is preferred to qiyas.1 This point has been raised
by the very defenders of istihsan.2

The fact is that istihsan, as originally introduced and
used by Abu Hanifah, was no more nor less than a resort
to personal opinion as influenced by considerations of public
welfare. When the Shafiites attacked this principle on the
ground that it meant a setting aside of the revealed texts,
the disciples of Abu Hanifah felt themselves forced

1 The following quotation from the Tawfch (p. 496) fully bears this
point out : " By an intellectual division, each [qiyds and istihsdn] is
divided into strong and weak in causal " effectiveness," and in case of
conflict, istihsan is not preferred to qiyas except in one single case,
namely, when the qiyds is weak in its causal " effectiveness." and the
istihsdn is strong. As regards the other three cases, the qiyds is pre-
ferred to the istihsdn.

1 Kashf, p. 1123.

98 MOHAMMEDAN THEORIES OF FINANCE [408

to show that such was not the case, and being able in
scholastic methods, they put forward the contention that
istihsan was nothing but another kind of qiyas, which was
called istihsan because, being stronger, it was preferred to
the other. But at the next moment, they are forced to contra-
dict themselves by saying that istihsan is not always pre-
ferred to qiyas. This is nothing less than an admission by
implication on their part, that istihsan is not the same thing
as qiyas.

That Abu Hanifah and his earliest disciples did not con-
sider istihsan as a kind of qiyas, and that the above con-
tention is really an afterthought, is borne out by statements
quoted in the Hanifite books themselves. Thus al-Bukhari
states in the Kashf * that the Hanifites disagreed about the
meaning of the istihsan which Abu Hanifah advocated.
Some said that it is a departure from one qiyas to another
and stronger qiyas.2 Others said it is the limitation of
qiyas by some evidence stronger than itself. Abu '1-Hasan
al-Karkhi, who preceded al-Pazdawi by over a century &
is quoted as having said : " Istihsan is to depart from judg-
ing in a case according to what has been judged in analogous
cases, and to judge to the contrary on account of a stronger
reason (li wajh aqwa) which renders necessary the de-
parture from the former." * This quotation from al-
Karkhi seems to express the real situation before the later
writers had as yet woven into it their own refinements.
The mere fact of a disagreement about the meaning in
which Abu Hanifah used istihsan is very significant. It
shows that Abu Hanifah did not use the word in any techni-

1 P. 1123.

* This is the view held by al-Pazdawi and the later doctors.

3 Al-Karkhi died in 340 of the Hijrah, while al-Pazdawi died in 482.

4 Kashf, loc. cit.

409] OTHER PRINCIPLES OF LEGISLATION 99

cal sense. Had that been the case, like so many of his
views it would probably have been placed on record. The
fact is that he used the word istihsan in its usual meaning,
namely that of abandoning qiyas for an opinion thought more
subservient to the social interests. In the Kashf there is a
quotation to bear this out. According to it, Abu Hanifah
has said on certain occasions, " I have abandoned istihsan
for qiyas" He evidently meant by istihsan something
different from qiyas. Similar statements are found in
Abu Yusuf's Kitab-al-kharaj '-1 Finally, al-Shafi'i con-
demning istihsan says 2 " If one were allowed to ignore
qiyas, the people of opinion [ahl al-'uqul] who are not
informed on 'Urn [namely, the knowledge of the re-
vealed texts] would then have been allowed to express
opinion on matters in regard to which there is no prescrip-
tion in the revealed texts, according to what seems to them
proper (istihsan)"; but this is not allowed. Now if Abu
Hanifah meant by istihsan a kind of qiyas, it is very likely
that al-Shafi'i would have referred to it. We may, there-
fore, be certain that the contention made in regard to
istihsan being a kind of qiyas, is only a fiction, invented by
later Hanifite doctors. Even if we grant this fiction to
be true, istihsan still is a liberating principle, as will become
clear from the following :

To take up first the contention that istihsan is a kind of
qiyas, it may be answered that it is true that in the last
analysis istihsan is a sort of judgment by analogy, but one
in which the causal attribute (cillah), is not determined in
quite the same way prescribed in the treatises on usul-al-fiqh,
but is somewhat far fetched. The very name of khafi
(concealed, subtle) given to this kind of qiyas by the

1 P. 109, 1. i; p. 112, 1. — 5; p. 117, 1. — 5; £f. also al-Jdmi' al-Sagir,
P- 17, 1. —5 ; P- 72, 1. 2.
1 Risdlah, p. 70, 1. i.

100 MOHAMMEDAN THEORIES OF FINANCE [410

doctors, suggests this. But in applying a qiyas the most
important thing is the basis on which the qiyas will be made,
namely, the fillah, and if you once grant the right of depar-
ture from the accepted principles in determining this 'illah,
with the aid of a little scholastic ability, one can prove
almost anything on earth. A few examples will illustrate
the point.1

Judging by analogy the food touched (su'r) by wild birds
should be unclean (najs), because the food touched by
wild beasts is unclean, and wild birds are like wild beasts,
both being unclean for eating. However, judging by
istihsan, the food touched by wild birds is clean (tahir).
The argument is as follows. The quadrupeds, when they
touch food, inevitably leave a part of their saliva in the
remainder and pollute it, because the saliva is secreted from
the flesh and is unclean like it. In the case of the birds,
however, this is not true, because they take the food by
means of their beak, which is a hollow bone and has no
saliva in it. So, although apparently, the food touched by
the latter should by analogy also be unclean, a closer inquiry
reveals the fact that it is not polluted. Indeed the animals
are not unclean as such, for it is allowed to use them and
sell them, and if they were unclean, in and of themselves,
like pigs, their use and sale would have been likewise for-
bidden. Moreover, if the bones of dead animals are con-
sidered clean, how can the bones of living animals be con-
sidered unclean? In other words, the uncleanness resides
in the flesh alone, and the food they have touched has been
considered unclean because of its admixture with the un-
clean, but this does not happen in the case of the birds.

How many nice distinctions must be made in order to
reach the above conclusion ? It must first be proved that the

1 Kashf, p. 1126; Taw&b, p. 493-

41 1 ] OTHER PRINCIPLES OF LEGISLATION IOi

'illah is the admixture with the unclean. Second, that it is
only the flesh that is unclean, not the beak, horn, etc. Yet
one might just as readily argue that the latter are more, or
just as much unclean as the flesh; or, assuming for the
sake of argument, that contact without some theoretical
minimum of admixture is possible, that mere contact is suf-
ficient to pollute.

To cite another example of istihsan, if two parties to an
act of salam, (sale of future goods for present cash), dis-
agree in regard to the length (dhira') of the thing sold
(nwslam-flh) , according to qiyds, each party may require
an oath from the other (tahaluf), because they have dis
agreed about something claimed by virtue of an act of salam.
According to istihsan, they do not require an oath, because
they have not disagreed on the thing sold, but on its quality,
which does not require the giving of an oath to each party.
" However, if we examine closely, we see that they are not
disagreeing on the very thing sold, but on its quality, for
they have disagreed about the length. But the length is a
quality, because when the length is greater, the dress made
out of it is better, unlike the case of measure by volume,
(kayl) or by weight. Since the measure by length is a
quality, disagreement on the length does not necessitate
tahaluf. This meaning, namely, that the length is a quality,
is more subtle, than the other, and judgment based on it is
called istihsan, as distinguished from qiyas." *

The argument here is that a shortage in length is different
from one in weight or volume, because in the latter two
cases the buyer may make up the shortage by buying more
of it, whereas in the case of length, although he may still buy
more, he cannot use this last increment as profitably. For
instance, assuming the object bought to be cloth, a shortage

1 Taw&h, idem.

102 MOHAMMEDAN THEORIES OF FINANCE [4I2

in the length would affect the quality of the dress to be made
out of it. Now, although this is true in general, it is based
on many assumptions. In the first place one might question
whether this consideration of length was entirely relevant
to the point at issue, namely, the taking of an oath by both
parties. Again, one might contend that there are cases
where it is not possible to buy the part wanting, and then
volume and weight would be like length.

These two concrete cases clearly illustrate, how easily the
argument may be twisted to arrive at conclusions as dif-
ferent as prohibition and permission. This is not saying,
that the Hanifite doctors have been consciously twisting
their arguments, or that it is at all necessary to do that, in
order to get the desired result. As a matter of fact, what
happens is that one starts out with a certain predisposition
inspired by existing practices and social needs or by a priori
considerations, and the rest takes care of itself without con-
sciousness on the part of the thinker.

SECTION II

The Other Principles

ISTISLAH. We have already referred to this principle
in discussing qiyas. It consists in prohibiting or permit-
ting a thing simply because it serves a " useful purpose "

(maslahah), although there is no express evidence in the re-
vealed sources to support such action. Istislah, has been
called by some, " independent deduction " (istidlal mursal),
or simply "deduction" (istidlal). Al-Gazali defines
istislah, as the establishment of a legal principle (hukm)
for which there is no evidence in the sources, but which is
recommended by reason as advantageous. According to
al-Khuwarizmi, " useful purpose " (maslahah) means the
protection and preservation of the objects of the sharfah,

413] OTHER PRINCIPLES OF LEGISLATION IC>3

by warding off mischief from humanity. The " useful
purpose " has been divided into three kinds.

( i )The "useful purpose" which meets an absolute neces-
sity ( daruri) . Such is supposed to be the case, in the follow-
ing five instances called al-kulliyyat al-khams: (a) preserva-
tion of life (the law of tallion) ; (b) protection of property
(prescriptions like the cutting off of one's hand for theft) ;

(d) preservation of faith (the killing of the apostates
[murtadd] and holy war) ; (e) finally, preservation of
reason : the prohibition of alcoholic drinks is based on this
ground.

(2) The "useful purpose" which meets no absolute
necessity but is merely expedient (haji). For example, the
institution of location (i jar ah) is based on this.

(3) The " useful purpose " which serves an end like the
promotion of good morals (tahsmi).1

The principle of istislah is used by the Malikites, the other
schools having prohibited its use. However, the Malikites
claim that all the schools have used it.2 According to al-
Juwayni, Malik carried this principle too far, so that for
purposes useful in appearance only, he made legitimate the
taking of life, and the confiscation of property, although
there was no evidence in the revealed texts to confirm such
a procedure.

ISTISHAB. This principle has been introduced by al-
Shafi'i. According to it, when the existence of a thing has
been once established by evidence, even though later some
doubt should arise as to its continuance in existence, it is
still considered to exist. It is called istishab al-hal, if the
present is judged according to the past, and istishab al-

1 Shawkani, p. 201.

2 Majmu, p. 67.

MOHAMMEDAN THEORIES OF FINANCE

modi, if the converse is the case. This principle is admitted
by Abu Hanifah also, but only to refute an assertion
(dawa), that is, as an instrument of defence, (daf dawa)
and not to establish a new claim (dawa). According to
al-Shafi'i, however, it may be used for both purposes. The
Hanifites hold that the establishment of the existence of a
fact is no evidence of its continuance in existence and
therefore, they say, the continuance of the Mohammedan
shari'ah after the death of Mohammed does not rest on the
principle of istishab, as the Shafiites claim, but on the
hadith that the Mohammedan shari'ah will never be abro-
gated.

The principle of istishab is a limited principle. It only
applies to cases where there is no evidence obtainable, and
at best, establishes the continuance of a fact in existence,
which was already proved to have existed.1 Nevertheless,
in the extended scope given to it by al-Shafi'i, it acquires
considerable importance, especially in questions of fiqh.

THE SUNNAH OF THE COMPANIONS. The sunnah of
the Companions of the Prophet has been a source of great
importance. Theoretically this sunnah is not binding upon
the Mohammedans, except in so far as it is based on that
of the Prophet. When the conduct of the Companions is
based upon their personal judgments, it is considered equi-
valent to qiyas, and the canonist is free to accept or reject it.
However this theoretical restriction has no importance in
practice, since one can always claim that the sunnah of the
Companions was based on that of the Prophet. This is
confirmed by the divergence of view, concerning the mean-
ing of the word sunnah when it occurs by itself (mutlaq),
that is, when there is no indication to show whether it is the
sunnah of the Prophet or of his Companions which is meant.

1 Tawdlh, p. 527.

4!5] OTHER PRINCIPLES OF LEGISLATION IO5

We have seen in discussing the classification of the sharl'ah
values, that many held the view that the word sunnah may
mean both the sunnah of the Prophet and that of his Com-
panions. It would seem that in actual practice usually no
distinction was made between the two sunnahs, and that
the writers on usul-al-fiqh attempted to draw such a distinc-
tion, only because they were driven by the logical necessi-
ties of the case. Hence one may without hesitation say that
in practice the sunnah of the Companions has exercised
great influence on the development of the Mohammedan
law. One may easily convince himself of this by a refer-
ence to the fiqh books where a great number of decisions
have been based on the sunnah of the Companions. This
is also borne out by the great number of traditions found in
the hadith collections, bearing on the sunnah of the Com-
panions.1

The views of the canonists on this subject may be
summarized as follows : 2

(1) The sunnah of the companions is by unanimous
opinion (ijma() binding on those points concerning which,
though generally known, no opposition has been made on
the part of the Moslems.

(2) Their sunnah is not binding on the points on which
they have disagreed among themselves. There is an ijmd'
on this opinion.

(3) There is disagreement as to the binding force of
their sunnah on the points on which it is not known whether
they have agreed or disagreed : according to al-Shafi'i their
sunnah on such points is not binding, because it cannot have
been based on direct hearing from the Prophet, and because
the Companions in their ijtihad, like other canonists, are

1 Cf. Sprenge'r, p. 2.
8 Tawfch, p. 384.

I06 MOHAMMEDAN THEORIES OF FINANCE

liable to error. But according to Sa'id al-Barda'i, their
sunnah is binding, because the Prophet has said : " My Com-
panions are like the stars, no matter whom from among
them you follow, you will be going the right way," and
because most of the sayings of the Companions are based on
what the latter have heard from the Prophet. Moreover,
the Companions have witnessed the circumstances of the
revelations, have been pioneers in the religion, and have had
the blessing of conversation with the Prophet. According
to al-Karkhi, the sunnah of the Companions is binding only
as regards those points which cannot be otherwise cleared
up by qiyas, as such points must have been based on direct
hearing from the Prophet, unless they be lying, which is
inconceivable. But their sunnah is not valid as regards
points which may be established by qiyas, since the Com-
panions like others may err in their qiyases.

As regards the Followers (tabi'iyyun, or tabi'un), that is,
the generation following the Companions, their sayings are
like those of the Companions, if they have expressed them
during the time of the latter, for by the tacit confirmation
of the Companions, they have become like them.1

CUSTOM.2 Custom (curf} (adah) maybe general (famm)
or special (khass). Each of these may either be in opposi-
tion to the sources (nass shar'i) or to the statements (nass)
occurring in the recognized books of the school (zahir-al-
riwayah) ; or on the contrary, it may be in accordance with
them. If the latter is the case, there is no room for dis-
cussion ; if however custom is in opposition to them the fol-
lowing cases are conceivable.

(i) Custom is in opposition to the revealed texts,
(nass shar'i). In such a case, if the opposition is absolute,

1 Cf. Pazdawi, p. 944 ; Taivfch, p. 383.

2 Ibn 'Abidin, vol. ii, pp. 114 et seq.

4!7] OTHER PRINCIPLES OF LEGISLATION JQ/

so much so that to follow the custom would amount to an
abandonment of the text, then there is no doubt that custom
must be set aside. If however the opposition is not abso-
lute, if for example the text is general and the custom
opposes it in some of its applications, or if the custom,
instead of opposing the text opposes only a qiyas based on
it, preference is given to the custom, if general, as was
the case in istisna' or in entering a bath without specifying
the time to be spent therein.1 Custom however is set aside,
if not general.

(2) Custom is in opposition to the text of the books
recognized in the Hanifite school as standard (sahir-al-
rksayah) . The texts of these books are either directly
based on an unequivocal statement (nass) in the revealed
sources, and then it is the same as in the preceding case ; or
they are merely the opinions of the doctors. Inasmuch as
many of these opinions have been based by the mujtahids
on the customs of their times, it is permissible to depart from
them if the customs have meanwhile changed. It is neces-
sary, however, in doing this to exercise great circumspection
and care. In this last case, it is immaterial whether the
custom is general or special, because both of them take
precedence over the texts of the books.

PREVIOUS DISPENSATIONS.2 According to some, these
continue in force so long as they have not been abro-
gated. Others hold that they are not binding, unless there
is evidence to the contrary. Still others claim that these

1 Both in istisna and in entering a bath, analogy would require that
the acts should be considered imperfect (fdsid) : in the case of sale,
because there is opposition to the principle that the thing sold must be
already in existence at the time of sale; in the case of location, be-
cause the time during which the location is to run must be known.
However, in both cases the analogy of the text has been overruled be-
cause of a custom to the contrary.

1 Tawfch, p. 383 ; Pazdawi, p. 932.

I08 MOHAMMEDAN THEORIES OF FINANCE [4Ig

were meant for the people, time and place for which they
were revealed. The opinion generally accepted by the
Hanifites is that previous dispensations, in view of their
great distortion at the hands of their votaries, are valid for
the Moslems only in so far as they have been confirmed by
the Mohammedan shari'ah.

CHAPTER VIII
CLASSIFICATION OF THE SHARI'AH VALUES

The author of the Tawdlh l reduces the various kinds of
sharl'ah values (hukm) to the following classes :

A sharl'ah value may or may not consist in a correlation
(ta'alluq) between one thing and another, as when we say
that A is, or is not, the cause or condition of B.

When the value does consist in a correlation of one thing
with another,2

(1) if that which is so correlated is contained in the
thing to which it is correlated, it is called its rukn (formal
cause) , e. g., the offer and acceptance of the two parties to a
sale are the rukn of sale, because they are included in the
act of sale ;

(2) if the thing so correlated is not contained, but is ex-
ternal to the thing to which it is correlated, then,

(a) if it has been indicated in the revealed sources as the
" effective " cause (mu'ath-thir flh) of the latter thing, it is
called its " effective " cause ('illah) ;

(b) if it is not so, and,

(1) if on the whole it leads to the other thing, it is
called its sabab (occasion, cause),

(2) if it does not lead to it, and,

(a) if the other thing is dependent upon it, it
is called a condition (shart), and

(b) if the other thing is not dependent upon it,
it is called a sign ('alamah) of the other
thing.

1 Pp. 561 et seq. ; cf. Talwih, ibid.

1 Tawdih, p. 561.

419] 109

IIO MOHAMMEDAN THEORIES OF FINANCE [420

When the value does not consist in a correlation of one

thing with another, it is either a quality of an act by a legally
responsible person (mukallaf), such as the quality of an
act being allowed (ibahah) or prohibited (hurmah) in the
shan'ah; or it is the effect (athar) of such an act, such as
ownership and indebtedness, which are the effects of the
acts of purchase and borrowing respectively.

When the value is a quality of an act, two cases are
possible :

1 I ) The emphasis is either laid on the " worldly con-
sideration," for example, when we speak of the validity
(sihhah) of an act of worship, we are primarily thinking
of the act as freeing the worshiper from the obligation of
performing that particular worship again. In other words,
we are emphasizing what the doctors call " worldly con-
sideration," * although we may be thinking, in a secondary
way, also of the " religious consideration," namely, the
acquisition of merit (thawab) which the act results in.

(2) Or the emphasis is laid on the "religious consider-
ation," for example, when we speak of an act being wajib
(obligatory), we are primarily thinking of the act as result-
ing in religious merit (thawab), although we may be think-
ing of the act, in a secondary way, also as securing freedom
from an obligation (tafrig al-dhimmah) .

From the standpoint of the "worldly consideration,"
the value of an act is said to have,

(a) validity (sihhah), if the act results in the realization

1 By " worldly consideration " the doctors mean, in matters of wor-
ship ('ibadat}, the freeing of the person from the obligation of per-
forming the particular act of worship, say, ablution, and in temporal
matters (mu'dmaldt), the securing of the various intentions and objects
which pertain to those temporal matters, such as, for example, the
acquisition of property or its alienation pertaining to the worldly acts
of purchase and sale respectively.

42i] CLASSIFICATION OF THE SHARl'AH VALUES m

of the " worldly consideration ;" for example, a sale is valid
(sahth) if it results legally in the transfer of ownership
from the seller to the buyer ;

(b) nullity (butlan), if it entirely fails to secure the
realization of the " worldly consideration ;" such an act is
called null (batil) ;

(c) imperfection (fasOd), if the formal cause (rukn)
and the conditions (sharft'it) of the act are conducive to the
realization of the " worldly consideration," but its outward
qualities (awsaf kharijiyyah) are not so conducive; the act
then is said to be fasid.1

From the standpoint of the " religious 2 consideration,"
values are either 'azimah (ideal) or rukhsah (actual).
They are said to be 'azimah, when they are considered
a priori and in their original rigor, without reference to
any attenuating circumstances in life, which may soften
their rigor or even entirely suspend them. They are the
law as intended in the first instance by the lawgiver. They
are said to be rukhsah (literally, concession) when they are
considered with reference to the attenuating circumstances
of life.

Human acts, according to the 'azimah values which
attach to them, are grouped in the following categories

1 From the standpoint of " worldly consideration " as pertaining to
temporal matters (mu'dmaldf), one may further distinguish between
acts, which are contracted (mun'aqid) or uncontracted (gayr-mun'aqid) ,
authorized (ndfidh) or unauthorized (mawquf), binding (Idzim) or
non-binding (gayr-ldzim) .

2 Some doctors have claimed that the several sharl'ah values distin-
guished from the standpoint of " worldly consideration " may be all
reduced to some one of the values distinguished from the religious
standpoint. Thus, they said that when a sale is claimed to be valid
(saljih), it is only meant that the purchaser may exercise on the thing
purchased all the rights of ownership, such acts on his part being
mubdh. Others contended that these values, properly speaking, are not
shari'ah values at all. (Talwih, p. 563.)

H2 MOHAMMEDAN THEORIES OF FINANCE [422

which shade off into one another from the " imperative "
(fard) to the " indifferent " (mubah).

(1) The fard (imperative) is the act whose value, called
faradiyyah, has been established by a shari'ah evidence about
which there is no doubt. The legal effect (hukm) of the
fard is that it must be given absolute faith and self-sur-
render and that it must be executed. Failure to believe
in it entails unbelief, and failure to execute it causes im-
piety (fisq).

Conversely, the commission of the fard results in the
acquisition of religious merit (thawab). Thawab techni-
cally means title to " divine mercy and pardon, and to the
mediation of the Prophet." * Examples of the fard are
faith (iman)y performance of the daily prayers, giving of
zakat, pilgrimage to Mecca, etc.

The fard, and for that matter, the wajib also, is divided
into two kinds: (a) The fard 'ayn (personal fard) ; it is
the act which every one must personally perform. The
performance of the daily prayers, and the giving of zakat
are of this kind, (b) The fard kifayah (social fard) ; it is
the act which every person is under obligation to perform,
until a sufficient number of persons have performed it, the
rest being then absolved from the obligation of performance.
The reward (ajr) in such case, belongs to those who per-
formed the act, but the rest are not punished for its omis-
sion. If however no one should perform the act, then they
are all punished. An example of this is the obligation of
holy war (jihad). Every Moslem is under obligation to
wage it, until a sufficient number of Moslems have done so.

(2) The wajib (obligatory) is the act whose value,
called zvujftb, has been established by a sharfah evidence
concerning which there is doubt. The giving of alms for

1 Tech. Diet., p. 171.

423] CLASSIFICATION OF THE SHARP AH VALUES

breaking the fast is of this kind. The value (hukm) of the
wajib is that it must be executed like the fard, although it
need not be given absolute faith as the latter. Al-Shafi'i
merged the fard and the wajib into one single category, call-
ing it by either one of the two names, and defining it as
" that whose commission is rewarded and omission pun-
ished." Both the fard and the wajib admit of divine
pardon.

(3) The acts which are not obligatory to the degree of
being fard or wajib, and whose commission is still re-
warded and is preferable to their omission, though the
latter does not entail divine punishment, are said to be
(a) sunnah,1 if they are the way habitually followed in the
religion (al-tanqah al-maslukah fi 'l-din}, namely, if they
are acts that were performed by the Prophet habitually.2
According to the Hanifites, sunnah, unless there is an in-
dication to the contrary (al-sunnah al-mutlaqah) , may mean
habitual acts performed by both the Prophet and the Com-
panions, but al-Shafi'i held that it can only mean acts per-
formed by the Prophet.3 The sunnah is of two kinds:
sunnat-al-huda, also called al-sunnah al-mu'akkadah, such
as the adhan (calling the public to prayer) and jamd'ah
(prayer in public under the leadership of an imam), whose
omission is evil and abominable (makruh) ; and sunnat-al-
zawa'id, such as the personal ways of the Prophet in dress-
ing, walking, and sitting, whose omission is not abominable.
According to the Technical Dictionary,* Sadr-al-sharl'ah
classed as sunnat-al-huda the Prophetic acts pertaining to

1 Sunnah in this sense must not be confused with sunnah in the sense
of one of the four bases of nqh. Sunnah in the latter sense may and
does include prescriptions of every category.

' Cf. Pazdawi, p. 628.

8 Tawfch, p. 566; Tech. Diet., p. 704; Pazdawi, p. 630.

4 P. 70S.

II4 MOHAMMEDAN THEORIES OF FINANCE [424

worship ('ibadah), and as sunnat-al-zawa'id, those not so
pertaining to worship (fadah) . Sunnah, as will be observed
from the above, applies primarily to acts performed in the
process of worship ('ibadah). This explains the fact that
some held sunnah to mean that which is supererogatory in
worship.1

(b) They are said to be nafl, if they are acts that
the Prophet performed at one time and omitted at
another time. The nafl is less obligatory than the
sunnat-al-zawaid, and like sunnah, nail, too, applies pri-
marily to acts of worship, that are supererogatory,
namely, acts of worship that are neither ford, nor wajib,
nor sunnah. Nail is also used in the more general sense
of acts of worship that are neither fard, nor wajib,
and in this sense it includes sunnah. An example of the
nail is to perform more prostrations in the prayer, or to give
more than the legal rate of zakat. The omission of the
nail is not abominable. The nail is also called mandub,
tatawwu' and mustahabb, and the quality of an act being
mandub or mustahabb is called nadb, or istihbab, re-
spectively.

(4) The mubah, or ja'iz, or halal (the indifferent)
is the act whose commission is not rewarded but whose omis-
sion is not punished.

(5) The makruh (abominable, odious) is the act whose
omission is preferable to its commission. It is of
two kinds: (i) The makruh karahat=al=tanzih (that which
has been considered abominable for purposes of keeping
pure). This kind is nearer to the mubah than to the next
category, that is, its commission is not punished but its
omission is rewarded though by a lower reward than that
of the next category. (2) The makruh karahat=al=tahrim

1 Tech. Diet., ibid.

425] CLASSIFICATION OF THE SHARI'AH VALUES n5

(abominable to the degree of prohibition). This kind is
nearer to the haram, that is, its commission results in de-
privation of the privilege of intercession and in other
disadvantages, excepting punishment in fire. Muhammad
Ibn al-Hasan considers this kind as identical with the
following one. In his view, an act is haram, whose omis-
sion is based on evidence of which there is no doubt, other-
wise it is makruh karahat-al-tahrim.1

(6) The haram, (prohibited) or mahziir, is the act whose
commission is punished and omission rewarded.

The rigor of the above prescriptions is subject, as already
hinted, to the softening influence of the rukhsah, which
according to Ibn 'Abbas, is an alms of God which one must
not refuse.2 For instance, if a Mohammedan is compelled
to deny his faith, he is permitted to do so, although the
'azimah would be for him to persist in his faith until death.
The excuse in this case is the right of a person to
live. In certain cases, it is even obligatory to make use of
the benefit of rukhsah, while in others it is only commend-
able (mandub) or indifferent (mubah). An example of
the first case would be to eat a dead corpse, when on the
point of starvation. An example of the second, would be
to reduce the length of prayer during a journey, and of the
third, to break fast while journeying.

With reference to the performance of the preceding vari-
ous categories of prescriptions, the following distinctions
have made made :

(1) Ada' is the performance of the obligation per se
((ayn), whether or not a time has been specified in the re-
vealed sources for its performance.

(2) Qada* is the performance of a similar (mithl) obli-

p. 566.
1 Goldziher, d. Zahiriten, pp. 68-9.

ZI6 MOHAMMEDAN THEORIES OF FINANCE [426

gation, instead of the identical obligation, as in the first
case. The above is according to the Hanifites. The
Shafiites use these terms only in regard to the performance
of prescriptions for whose obligation a time limit has been
specified. They mean by ada' the performance of the obli-
gation at the time set for it, qada' being its performance
after such time. Moreover, they distinguish a third kind,
i'adah (repetition), which means a second performance of
the obligation at its set time, the first performance having
been non-valid for some reason or other.

CHAPTER IX

IjTIHAD OR THE EXERCISE OF INDEPENDENT THOUGHT a

THE word ijtihad means literally the exertion of great ef-
forts in order to do a thing. Technically it is defined as "the
putting forth of every effort in order to determine with a
degree of probability a question of shari'ah." It follows
from the definition that a person would not be exercising
ijtihad if he arrived at an opinion while he felt that he could
exert himself still more in the investigation he is carrying
out. This restriction, if conformed to, would mean the
realization of the utmost degree of thoroughness. By ex-
tension, ijtihad also means the opinion rendered. The per-
son exercising ijtihad is called mujtahid, and the question
he is considering is called mujtahad-flh.

It becomes clear from the definition, that the mujtahad-
fih must be a question of shari'ah. In other words, intel-
lectual problems, such as the createdness (hudiith) of the
universe, the existence of a Creator, the sending of pro-
phets, etc., cannot properly constitute a subject of ijtihad,
because in these there is only one correct view, and all hold-
ing a different view are wrong. Furthermore, the subject
of ijtihad must not be one on which there is positive
evidence (dalil qat'i). Consequently, one may not exer-
cise ijtihad on matters such as the wujub (obligation) of
the " pillars of faith " (e. g., the performance of the five
prayers or the giving of sakat), or such as the prohibition
of adultery, murder, wine-drinking, usury, theft. These are
evident truths of the shari'ah, based on explicit statements

1 Kashf, p. 1134; Tawfcb, p. 554; Taqrir, vol. Hi, p. 291.
427] 117

MOHAMMEDAN THEORIES OF FINANCE [428

(nass), and concerning them the whole Moslem community
is of one opinion (ijma(). A wrong ijtihad concerning
such questions would be outright sin, " and we are con-
cerned here with the kind of ijtihad where wrong opinion
does not entail sin." In other words, the person who is
qualified to be a mujtahid may exercise ijtihad only in re-
gard to questions on which there is no positive evidence. In
such cases he may be right or wrong, but, should he be
wrong, he is not considered a sinner. On the contrary,
" he is excused and rewarded, since his obligation is only
to exert himself, and this he has already done, but he
could not reach the truth on account of the obscurity of its
evidences." 2 If the mujtahid is wrong notwithstanding
the fact that the evidence is clear he is not excused, for
obviously he is wrong " by reason of a fault of his, and be-
cause he did not do his best in exerting himself, and there-
fore he is punished." ! As regards the mujtahid who is
wrong in the fundamentals of religion, his failure may be a
case of simple error (dalal) or of unbelief (kufr). Some
claim that error in the fundamentals of religion does not
entail sin.

According to al-Mawardi, the scope of ijtihad after the
Prophet's death includes eight separate heads. Seven of
these consist in the interpretation of the revealed texts, by
some method such as analogy, and the eighth is the deriva-
tion of a meaning from other than the revealed texts, e. g.,
by reasoning. A few of the rules concerning ijtihad are
as follows:

The mujtahid is under a " personal obligation " (fard
fayn) to exercise ijtihad in regard to matters concerning

1 Gazali, vol. ii, p. 354.

1 Talwih, p. 560.

8 Ibid., cf. also, Gazali, vol. ii, p. 357 ', Tawdlh, p. 559.

429] EXERCISE OF INDEPENDENT THOUGHT

himself, for in such matters he is not allowed to follow
(taqlid) the opinion of others.

A mujtahid is likewise under a " personal obligation " to
exercise ijtihad for others when the matter does not admit
of delay.

When a person asks for the opinion of a mujtahid in
order to meet a situation, the exercise of ijtihad concerning
that situation becomes a fard kifayah obligation upon all the
mujtahids, and especially the mujtahid whose opinion was
requested. When any one of these mujtahids renders an
opinion upon the matter, the rest are absolved from the
obligation, but if, notwithstanding the clearness of the
question, they all refrain from rendering an opinion, they
all become sinners. They are, however, excused if the
question is ambiguous, but in such cases they must continue
their investigation until they solve it.

When the mujtahid is asked to give his opinion on a case
that has not as yet occurred, or when he considers such a
case of his own accord, the obligation to render the opinion
is not of the fard but only of the mandub category.

The mujtahid is not allowed to change his opinion con-
cerning the same case, although he may render a new and
different opinion in the future concerning an identical case.

The conditions pertaining to the mujtahid are the fol-
lowing: The mujtahid must know many sciences and have
many attainments. He must know the sciences of Koran,
its legal and literal meanings, its divisions, and, some say,
he must remember even the textual words, though others
claim that the ability to trace them is sufficient. He must
know the science of the sunnah, the ways of its transmis-
sion,1 the texts and meanings (if transmitted in meaning),

1 Al-Taftazani says that owing to the great distance of time it is now
impossible to know all about the transmitters and that therefore it is
enough to rely on /ia</i//i-collections like that of al-Bukhari (Talwih,
P. 555).

I2Q MOHAMMEDAN THEORIES OF FINANCE [430

the logical values of the terms, whether they are universals
or particulars, etc. Finally he must know the laws of qiyas
and ijma', etc. Yet all this is not enough. The mujtahid
must possess a perfect character. He must be " just," a
man of good faith and right intentions, and truthful. These
virtues are not presumed to exist in a person who merely
believes in the religious truths ; he must practise them. He
is assumed to practise them when he does not commit capital
sins (kabirah), when he fulfils his religious duties, and
when he does not persist in the commission of venial sins
(sagirah). Therefore the person who does not practise his
religious duties, although he may believe in them (fasiq),
may not be a mujtahid. The man whose thoughts are
tainted by heresy (bid'ah) is also excluded, for heresy
would warrant a presumption of injustice. In short, only
the person who is learned, pious and orthodox, may be a
mujtahid.1 A detailed statement of all these requirements
given by al-Gazali constitutes a formidable array of sciences
and practices, but dogmatic theology is not included in them.
It must be kept in mind that a combination of all these
virtues is necessary only for the person who intends to be a
full mujtahid (mujtahid mutlaq, or mujtahid fi 'l-sharlfah)
i. e., a mujtahid who may express an opinion on every
question of the shari'ah. Hence, one is allowed to enter
the rank of mujtahids (mansab al-ijtihad), although one has
mastered only a part of the required sciences, provided that
one exercises ijtihad only on questions falling within that
part. For instance, if one knows only the laws of qiyas,
though he may not know the science of the sunnah, or if he
knows only the subject of inheritance, he may form an
opinion on points included in the field known to him, since
it is not necessary for the jurisconsult (mufti) to be able

1 Cf. Ostrorog, p. 48.

43 1 ] EXERCISE OF INDEPENDENT THOUGHT I2i

to answer every question. Thus it is related of Malik that
he was asked forty questions concerning thirty-six of which
he answered : "I do not know." Similarly, the Com-
panions and all the great mujtahids have not answered
every question that was put to them. However, some doc-
tors have questioned the legitimacy of the " splitting "
(tajazzi) of ijtihad, that is whether a person should be al-
lowed to reach independent opinions within the branch of
fiqh which he has mastered, if he is not acquainted with the
entire subject of fiqh.1

The majority hold that the limited mujtahid is not en-
titled to independence of opinion outside of his specialty
and like the muqallids must apply to a mujtahid for an
opinion on such matters. This applies only in case the
" splitting " of ijtihad is granted to be legitimate ; in the
contrary case, the limited mujtahid must rely on the opinion
of the full mujtahid even on points falling within his own
specialty.2

The legal effect (hukm) of ijtihad is that the opinion
rendered is probably right, though there is the possibility
of error. Therefore, ijtihad in the fundamentals of reli-
gion has been forbidden. One sect, the Mu'tazilites, hold
that ijtihad is always right.

According to the degree of independence and scope of
research which the mujtahids have shown, they have been
classified by later Hanifite 3 doctors in the following
groups :

(i) The full mujtahid (mujtahid fi 'l-shar'). The
mujtahids of this type have established a legal system

1 It will be noted that this dispute is another form of the time-hon-
ored argument over the relative values of general education and
specialization.

2 Taqrir, vol. iii, p. 344-

* Ibn 'Abidin, pp. 1 1 et seq.

122 MOHAMMEDAN THEORIES OF FINANCE [432

(madh-hab) of their own and are called founders of schools
(sahib madh-hab). Abu Hanifah, al-Shafi'i, Malik, and
Ahmad Ibn Hanbal belong in this group. Each of these
has originated a different system of usul-al-fiqh.

(2) The mujtahids "within the school" (mujtahid fi
'l-madh-hab). These are the disciples of the former, like
Abu Yusuf, Muhammad Ibn al-Hasan, Zufar, etc. They
have determined the law in the particular cases (furuf),
applying the principles (usul) established by their master,
and have at times disagreed with him in the particular ap-
plications of the law but never in the principles.

(3) The " mujtahids on particular questions " (mujtahid
fi 'l-masa'il), like al-Khassaf, Abu Ja'far al-Tahawi, Abu
'1-Hasan al-Karkhi, Shams-al-a'immah al-Halwani, Shams-
al-a'immah al-Sarakhsi, Fakhr-al-islam al-Pazdawi, Fakhr-
al-din Qadikhan. These have not opposed the founder of
the school, either in the principles or in the particular appli-
cations (furu') of the principles, but have contented them-
selves with determining the law in regard to particular cases
which the former had left undetermined, using, however,
the principles established by the former. All the preceding
three classes have been called mujtahids, but the following
four are usually denominated as muqallids, muqallid being
the opposite of mujtahid.

(4) The so called "ashab al takhrij," like al-Razi, etc.
These are not able to form ijtihad, but, being well-con-
versant with the principles and the particular applications
decided by the former, indicate which view is correct in
cases of ambiguity or contradiction.

(5) The so-called "ashab al-tarjih," like Abu '1-Hasan
al-Quduri and the author of the Hidayah. These, when
there are several views on the same point, indicate which is
the correct view, by means of the use of some such expres-
sion as "this is correct" (sahlh), or "the fatwa is ren-
dered according to this view " (falayhi al-fatwa).

EXERCISE OF INDEPENDENT THOUGHT 123

(6) The doctors who can distinguish between the weak
and the strong, the reliable (zahir-al-riwayah) and the un-
reliable, etc. They are the authors of " the esteemed texts "
(al-mutiin al-mu'tabarah), like the Kanz, the Mukhtar, the
Wiqayah, and the Majma'. They include in their books
only the views that have been considered reliable.

(7) the class of the muqallids who lack the powers of
the preceding and " do not distinguish between the lean and
the fat, right and left, but on the contrary get together
whatever they find."

It must be remarked here that this classification appar-
ently is not intended by the doctors to indicate merely that
tlu- mujtahids have been classed in this or that group be-
cause they have shown only that much independence of
thought, for it implies a gratuitous assumption that the
later mujtahids could not show greater independence of
thought. This is another symptom of that peculiar habit
of mind which resulted in the fiction which has been termed
by the Moslem doctors " the closing of the door of ijtihad "
(insidad bab al-ijtihad). This fiction consists in the belief
that after the era of the full mujtahids (mujtahid mutlaq)
who founded the schools, no more mujtahids of that calibre
appeared, and according to some there is not even the pos-
sibility that such might appear.1

This belief, which is a later development, is partly due
to the fact that the founders of the schools were men of
great ability and thoroughness who had practically ex-
hausted the various logical alternatives which offered them-
selves for speculation within the limitations set by the
revealed texts. The later doctors had many views to
choose from, but there was little to add. They, therefore,
seized upon the existing material and elaborated it, filling

1 Juynboll, p. 34, fn. ; cf. Taqrir, vol. iii, pp. 339-4O.

MOHAMMEDAN THEORIES OF FINANCE [434

in the gaps left by the masters. By far the most important
factor, however, in bringing about this acquiescence with
what was said and done by the previous generations, and in
bringing about this voluntary surrender of independence
of thought, must have been the fact that, after the crystal-
lization of the various conflicting views into distinct systems
and schools and the acceptance of the same by the majority
of society, the future trend of thought was then and there
determined along existing lines. As time went on, people
as a matter of course ranged themselves under the banner
of the school that was predominant in their district. This
was especially true as, owing to the doctrine of ijmaf, once
an agreement was reached on a certain point, further dis-
cussion of that point was automatically barred.

But, while there is a historical basis for this fiction, there
is no justification for it in theory. Even those who accept
this fiction, will be careful to indicate by their wording that
this closing of ijtihad is not necessitated by theory, but
merely is a result of the absence of full mujtahids. Thus
Haydar Effendi, a modern Turkish authority on Fiqh, in
his Durar al-Hukkam? says that the door of ijtihad was
not closed (sadd) by an external cause but that it closed of
itself (insidad) through mere absence of mujtahids. Ac-
cording to theory, the mujtahid is not only free in his think-
ing but is bound to be so, and there is no a priori reason
why a person today might not be able to combine in him-
self the necessary qualities required by the Mohammedan
doctors themselves.

It is not therefore a matter of surprise to find among
earlier doctors strong statements condemning this belief
and refuting it by theoretical arguments.2 For example,

1 Vol. iv, p. 671.

2 Shawkani, p. 235.

435] EXERCISE OF INDEPENDENT THOUGHT ^5

al-Zarkashi [tenth century of the Hijrah], expressing great
astonishment that such a belief should have arisen at all,
says:

If they [i. e., the people entertaining this belief] are think-
ing of their contemporaries, it is a fact that they have had
contemporaries like al-Qaffal, al-Gazali, al-Razi, al-Rafi'i,
and others, all of whom have been full mujtahids} and if
they mean by it that their contemporaries are not endowed
and blessed by God with the same perfection, intellectual
ability and power, or understanding, it is absurd and a sign
of crass ignorance; finally, if they mean that the previous
writers had more facilities, while the later writers had more
difficulties, in their way, it is again nonsense, for it does not
require much understanding to see that ijtihad for the later
doctors (muta'akhiriln) is easier than for the earlier doctors.
Indeed the commentaries on the Koran and the sunnah have
been compiled and multiplied to such an extent that the
mujtahid of today has more material for interpretation than
he needs.

Similar views have been expressed by al-Shafi'i and others.1
The writings of the mujtahids, like the mujtahids them-
selves, have been grouped by later Hanifite doctors in three
main classes.2

(i) The so-called Usul (bases) or Zahir-al-riwayah (of
reliable transmission) or Zahir-al-madh-hab (the estab-
lished doctrines of the school). These are the views and
opinions, of Abu Hamfah and his disciples Abu Yusuf,
Muhammad ibn al-Hasan, also Zufar and Hasan Ibn Ziyad,
which have been recorded in the books called by the same
name, i. e., Kutub Zahir-al-riwayah. These books are the
Mabsfit, the al-Jamic al-Kabir, the al-Jami{ al-Sagir, and the
al-Siyar al-Kabir, all of them written by Muhammad Ibn
al-Hasan, Abu Hanifah's disciple.

1 Cf. also Ibn Hazm, p. 212.
1 Qadlzadah, p. 14.

126 MOHAMMEDAN THEORIES OF FINANCE [436

(2) The so-called al-Nawadir. These are the views and
opinions of the above doctors recorded in other than the
above mentioned books, such as the al-Klsdniyydt, al-
Haruniyyat, al-Jurjaniyydt, and al-Raqqiyyat, of the same
Muhammad, the Amdli of Abu Yusuf , the books written by
Hasan Ibn Ziyad, Zufar, etc.

(3) Finally, the Waqi'at, namely the views of later
mujtahids, like 'Isam-al-din Ibn Yusuf, Ibn Rustam,
Muhammad Ibn Sama'ah, Abu Sulayman al-Jurjani, Abu
Hafs al-Bukhari, etc. The first book of this kind was the
Nawazil of Abu '1-Layth al-Samarqandi. It was followed
by al-Natifi's Kitab Majmu' al-Nawazil wa 'l-Waqi'at.
Later writers compiled works in which they put together
the views contained in these earlier books. Qadikhan is
one of these writers. The best compendiums of the opinions
of the first class (usul) are the Kofi, and the Muntaqa. A
commentary on the Kdfi has been written by al-Sarakhsi, in
a work entitled al-Mabsut. It is a large book in thirty parts
and has been very extensively used in Part II. of this study.

The opposite of mujtahid is muqallid and of ijtihad is
taqlid. Taqlid is defined as the servile acceptance of an-
other's opinion without evidence. According to this defini-
tion everybody who is not a mujtahid would be a muqallid.
Some have held that the name of muqallid applies only to a
mujtahid who follows the opinion of another mujtahid, or
to a layman who follows the opinion of another layman,
but not to a layman who follows the opinion of a mujtahid,
because, these people argue, the mere fact that the person
from whom an opinion is requested is a mujtahid is con-
clusive evidence for the layman who applies to him. Like-
wise, they say, it would not be a case of taqlid to follow the
views of the Prophet. Shawkani establishes a more rele-
vant distinction when he says that taqlid applies only in
case one follows the opinion of another person, but that it

437] EXERCISE OF INDEPENDENT THOUGHT 127

is not a case of taqlid when one applies to another person
to determine a point of fact. Therefore it is not taqlid
if a layman applies to a mujtahid in order to find what the
law is on a certain point.

The lowest scale in the hierarchy of intellectual freedom
is occupied by the so-called 'ammis or illiterate. These
naturally possess even fewer rights than the muqallids, for
while the muqallids can refer to the law-books and ascertain
the views of the doctors, the 'ammis do not even possess the
minimum of knowledge required for that, and must apply
to the mujtahids or the muqallids, if they are in doubt con-
cerning a point.

The process by which the mass of the illiterate are in-
structed in law is ifta, which means the act of answering a
question concerning a point of law. The act of asking for
such an answer is called istifta and the answer so given is
called fatwa (plural, fatdwi) . The person giving the fatwa
is called mufti and the person asking for it is called mustafti.

There has been considerable divergence of opinion as to
the amount of learning a person must possess in order to
qualify to give fatwas, but the generally accepted opinion
is that a mufti must be a mujtahid. A person however
is allowed to give fatwas by quoting 1 the opinions of
others, provided he conforms to the rules concerning trans-
mitters (rawi).2 Such a person, according to the Path,
when asked about a point, must not give his answer as final ;

1 The expressions used in the law-books to indicate that a certain
opinion is recommended by the author of the book for being quoted as
fatwa are the following: 'alayhi al- fatwa (according to this is the opin-
ion rendered) wa bihi yufta (according to this the fatwa is rendered) ;
wa 'alayhi al-'amal al-yawm (according to this is conduct at present)
wa huwa al-sahih or asahh (this is the correct view), etc.

1 Path, vol. vi, p. 360 ; for full details concerning the muftis consult
'Alamkiriyyah, vol. iii, pp. 380 et seq.\ Bahr, vol. vi, pp. 292 et seq.-,
Majnia', vol, ii. p. 120; Durar, p. 717; Durr, p. 8; Qadizadah, p. 16.

I2g MOHAMMEDAN THEORIES OF FINANCE [438

for example, he must not say, " The answer of your ques-
tion is this," but on the contrary, he must relate the various
opinions on the point, as for example, "Abu Hanifah said on
this point so and so," and leave it to the mustafti to follow
the opinion that appeals to his intuition as the correct one.
The author of the Path here interjects the opinion that, al-
though it is advisable for the person giving the fatwa to
quote all the opinions on the point, it is not necessary to
do so, it being permissible to mention only one of them.
The same author goes on to say that, inasmuch as the person
giving the fatwa is not a mujtahid but simply a transmitter
and narrator, he must see to it that he is quoting correctly.
This last point is considered to have been insured if the
narrator knows the complete chain of transmitters from
himself back to the original mufti, or quotes the fatwa from
a well-known book that is circulating in the hands of the
public, such as the books of Muhammad Ibn al-Hasan.
According to al-Razi, such books are equivalent to a report
of the mutawatir or mash-hur type. If, however, at the
present time there should be only a few copies of a rare
manuscript in existence, it would not be lawful to give a
fatwa on the basis of an opinion recorded in them, ascrib-
ing it for example to Abu Yusuf or Muhammad Ibn al-
Hasan, because these copies have not attained wide circula-
tion and reputation (lam tashtahir) in our time and place.
It is all right, however, if these opinions have been quoted
in a well-known book like the Hidayah or the Mabsut, since
it would then be a case of relying on these latter books.

While the muftis who are not mujtahids have no liberty
of thought and must simply quote others, the muftis who
are mujtahids 1 are conceded by the jurists the right to
depart from the opinion of the founder of the school, and,

1 Strictly speaking, the name mufti applies only to the mujtahids.

EXERCISE OF INDEPENDENT THOUGHT

in general, to exercise independence of judgment as far as
their learning will allow.1 But almost as early as the time
of the disciples of Abu Hanifah, one can detect the origin
of that peculiar state of mind which gratuitously assumes
that jurists of great calibre of mind are no longer to be met
and so it has been the current view for a long time to
consider the muftis and the judges as mere muqallids or
mujtahids of the most limited scope of research. Conse-
quently special rules have been elaborated as to the preced-
ence of doctors' opinions in giving a fatwa or rendering a
judgment.2

Special rules have been established also concerning taqlid
and the duties of the 'ammis (ignorant) who have to apply
to the muftis in order to find out what the law is. Refer-
ence will here be made only to a few of them. According
to Abu '1-Khattab, the duty of an 'ammi * is to apply to the
mujtahid for the solution of his difficulties, but he must see
to it that he applies to a person whom he knows to possess
the ability for that work, either because the latter has repu-
tation for science or piety, or because he has been recom-
mended to him. Consequently he must not apply to a person
whose condition is unknown to him, although some claim
that he may. Some hold that the educated person is
obliged to follow the opinion of a mujtahid only when
he feels convinced about the soundness of the latter's argu-
ments. It has been a matter of dispute as to whether in
intellectual matters, that is matters which are outside of the
shari'ah sciences, taqlid is legitimate or obligatory. When

1 It will be remembered that a mujtahid need not be of the full rank
and that he is bound to know only as much as he needs for the deter-
mining of the particular question he is interested in.

• For full details see 'Alamkiriyyah, vol. iii, pp. 383-387; cf. al-Fatdwa
al-Kubra, vol. ii, p. 212.

8 Majntu', p. 140.

I30 MOHAMMEDAN THEORIES OF FINANCE

there are two muftis, the 'ammi must apply to the more
learned of the two, although some say that he may apply to
either. When a person asks for a fatwa from two muftis
he follows the one whose opinion appeals to his intuition as
the more correct, although according to the Path * he may
also follow the one whose opinion does not so appeal to
his intuition. For, he says, the intuition (may I) of the
ignorant is of no account. When an 'ammi has followed
the opinion of a mujtahid on a point, by unanimous opinion,
he may not any longer follow the opinion of another
mujtahid on the same point, though he may do so in a new
case.

There has been discussion as to whether an 'ammi should
follow a definite school 2 in all particulars, some saying yes,
others saying no. The argument of the latter is that the
Companions of the Prophet did not blame people for fol-
lowing opinions other than their own. The first side argues
that after the establishment of the four schools, affiliation
with one of them is necessary.

May one in certain particulars depart from the doctrines
of the school to which he has pledged allegiance? 3 Some
say he may, others say he may not, and still others say
he may not if he has already acted according to his own
school. Finally, others say, if the case has already occurred,
he may not change, otherwise, he may. This last view has
been followed by Imam-al-haramayn. According to al-

1 Vol. vi, p. 360.
1 Shawkani, p. 253.

* In the Taqrlr (vol. iii, p. 351) it is said that the opinion of later
generations is that the 'ammi cannot properly claim affiliation with a
school and say, " I am a Hanifite or a Shafiite," because following a
certain school implies a minimum of discriminating intelligence and
acquaintance with the literature of that school, and the illiterate does
not possess even that knowledge.

EXERCISE OF INDEPENDENT THOUGHT I3i

Quduri, he may change his school if he is convinced that the
school he wants to follow is stronger than his own school
in regard to that particular case, otherwise he may not. But
others say he may change if the new school is not less
rigorous than his own school; and, according to others, he
may change if the new school pleases him better, and he
does not do it merely for fun, provided, however, that by
so changing he is not setting at nought what he has already
done in accordance with his school. However, in the
opinion of some, one becomes impious (fasiq) by picking
out from each school what is most agreeable to him, for
example, the drinking of nabidh (a kind of wine) from the
school of 'Iraq, temporary marriage (mut'ah) from that
of Mecca, etc. The author of the Taqrir sees no objection
to this practice.

It will readily be seen that notwithstanding the minute
dispositions that we have been briefly examining, there
are often cases where the believer may be at a loss
as to what is the right thing for him to do. For example,
when a person has asked for a fatwa from two muftis, how
is he to tell which one of the two he must follow? Or,
supposing that he is in the wilderness and wants to pray,
but does not know in which direction Mecca lies (qiblah),
how can he satisfy his conscience that he has performed his
religious duties completely? These difficulties are removed
by the process of taharri.1

Taharri 2 technically means the determination of a fact,
which it is impossible to ascertain, by means of intuitive
conviction. A person is said to resort to taharri when he
turns to his heart, that is, to his intuitive faculty in order

1 ' Alatnkiriyyah, vol. v, p. 569; Mabsuf, vol. x, p. 185; Ja'mi', p. 133.

1 Some jurists restrict the use of the word taharri to questions of re-
ligious ritual ('ibdddt) and use the word tawakh-khi concerning civil
transactions (mu'dntaldt).

I32 MOHAMMEDAN THEORIES OF FINANCE

to find the truth. Resort to this method is allowed when
the thing desired to be known is involved in doubt (shakk)?
and other evidence is not available, since in such a case it is
the only means of getting at the truth. The legal effect
(hukm) of taharri is that action based upon it is valid
(sawab) in the eyes of the shari'ah. The application of the
principle of taharri concerning the payment of zakat will
be seen in Part II.

1 The jurists define doubt (shakk) as the state of mind in which
knowledge and ignorance just balance each other, and, on the other
hand, they mean by gann (presumption) the case in which the side of
knowledge overbalances ignorance, though without any evidence in
its support.

CHAPTER X
THE FIQH SCHOOLS AND THEIR FOUNDERS

THE violent discussions which raged in the early period of
Islam in regard to religious and legal questions such as the
use of qiyas, or political issues like the calif ate, resulted in
groupings along certain lines. The groupings along the
line of fiqh, have been the ones which have received most
recognition and adherence. Consequently they have been
practically the only groupings to spread and survive to our
own day, and are known as the fiqh madh-habs or schools.
The differences between these schools, although they pri-
marily relate to matters of law, are by no means confined
to them, since they bear on subjects as far apart as meta-
physics and politics. In fact, they relate to all the various
subjects on which the shari'ah has had something to say,
namely to every matter which in those times excited hu-
man interest.

The most important of the fiqh schools have been the ones
founded by Abu Hanifah, Malik, al-Shafi'i, Ahmad Ibn
Hanbal, Dawiid Ibn 'AH, al-Awza'i, Sufyan al-Thawri, and
Abu Thawr. Each one of these is considered a full mujta-
hid, and is supposed to have had his own system of
theory and applications of fiqh. They have all been reck-
oned as orthodox and they have considered one another as
such. They are to be distinguished from the so-called
Shiites and Kharijites, etc., who are looked down upon by
the former as heretical.

133

I34 MOHAMMEDAN THEORIES OF FINANCE

According to al-Bagdadi,1 the origin of this distinction
between orthodoxy and heresy is based among other things
on the following statement of the Prophet :

" Verily, it shall happen to my community (ummah) what
happened to the sons of Israel. The sons of Israel split
up into 72 sects, and my community shall split up into 73
sects, namely, one more than their sects; all of these sects
shall go into the Fire excepting one single sect." They said :
" Oh Prophet of God, which is the one sect that will stay
away from the Fire ?" He replied : "The sect in which I and
my Companions have belonged."

The test of orthodoxy then is to hold the same views as the
Companions. Using this test, al-Bagdadi says 2 that in his
days only the faqihs and theologians who belonged in the
so-called orthodox body (ahl al-sunnah wa 'l-jam&eah)
could be considered as living in accordance with the Com-
panions, and that the remaining such as the Rafidites,
Qadarites, and Kharijites, were heretical.

The content of orthodoxy, as explained by the same
author in a long chapter,3 consists in agreement on 1 5 heads
or " pillars," as he terms them. Each of these " pillars "
must be understood by every adult person of mature under-
standing. These " pillars " include fundamental (ustil)
and secondary (furuf) questions. On the fundamental
questions, he says, all the orthodox Moslems have been at
one, though they have differed on the secondary; but, he
adds, their differences have not been in the nature of
error (dalal) or impiety (fisq).

These fifteen pillars embrace a wide range of subjects:
among others, questions of metaphysics, such as matter,

1 PP. 4-5.

8 P. 304.

9 Pp. 309 et seq.

THE FIQH SCHOOLS AND THEIR FOUNDERS

accidents and essences ; dogmatic theology, such as the exist-
ence, unity, attributes and names of God, the createdness of
the universe, the prophets, and their miracles ; worship, such
as the observation of the five " pillars " of Islam; fiqh;
public law, such as the question of the calif ate, etc. Those
who do not believe in the above al-Bagdadi would consider
as outside of the orthodox body, though they may still be
Moslems.

Who is called a Moslem? According to al-Bagdadi *
this question has been variously answered. Some said,
every person who believes in Mohammed as a prophet be-
longs in the Moslem community (millat al-islam). The
Karamites said, — every person who says, " There is no God
but God, and Mohammed is the prophet of God " is a
Moslem. Still others said, — every person is a Moslem, who
believes in the five prayers and in their being said with
the face turned toward Mecca. Al-Bagdadi, however,
would call a person Moslem, only if he believed in the
createdness of the universe, the unity, eternity, justice and
wisdom of its Creator, and would not liken others to God,
nor deny any of His attributes; believed in the prophecy
and mission of all the prophets, and in the truth of the
prophecy of Mohammed, as well as in his mission to all
nations; believed in his teachings and the Koran as the
source of divine revelation; finally, if he believed in the
obligation of the five prayers, the giving of zakat, the fast
of Ramadan, and the pilgrimage to Mecca. The person
who observes all the above is a Moslem; if he furthermore
abstains from any heresy (bid'ah) that involves unbelief,
he is a Sunnite (orthodox) Moslem. If on the contrary,
he commits a heresy, one of these two cases is possible:
( i ) The heresy is of the nature committed by the Batinites,

1 Pp. 220223.

MOHAMMEDAN THEORIES OF FINANCE

Bayanites, Mugirites, Mansurites, Janahites, Sabbabites,
or Khattabites (subdivisions of the Rafidites) ; or the
Hululites; or those who believe in the transmigration of
souls; or the Maymunites or Yazidites (both subdivisions of
the Kharijites) ; or the Haitites or Himarites (subdivisions
of the Qadarites) ; or it consists in the prohibition of what
the Koran permitted by name, and vice versa. In such
cases he does not belong in the Moslem community (millat
al-islam). (2) His heresy is of the nature committed by
the Zaydites and Imamites (subdivisions of the Rafidites) ;
or most of the Kharijites; or the Mu'tazilites, Najjarites,
Jahmites, Dirarites, and Mujassimites. In this case he is
considered a Moslem in certain respects, but is considered
to be outside of the Moslem community in other respects.
For example, like other Moslems, he is buried in the Moslem
cemetery, he receives a share in the spoils of war, and he
may enter a Moslem mosque to pray in it. However, it is
not allowed to a Sunnite Moslem to pray over his dead body,
nor to pray under his leadership (al-saldt khalfahu), nor
to eat his sacrifice; neither may a Sunnite marry women
of his sect, or offer him a Sunnite woman in marriage. In
brief, al-Bagdadi, distinguishes three classes of Moslems,
the Moslems who are Sunnites, those who are merely
Moslems, and finally those who are Moslems only in name,
but not in reality, such as the Maymunites and Hululites.
Al-Bagdadi includes the former two classes in the list which
he made out to bring the number of sects in the Moham-
medan community up to 73, but he excludes from the list
the third class of nominal Moslems.

According to the Technical Dictionary* the Prophet de-
fined Islam as consisting in the observance of " the five
pillars," namely, the testimony that there is no God but

*P. 696.

THE FIQH SCHOOLS AND THEIR FOUNDERS

God and that Mohammed is his Prophet, the five prayers,
the zakat, the fasting during the month of Ramadan, and
the pilgrimage to Mecca. In other words, Islam is the
external submission, and differs from iman (faith) which
means the internal submission. This distinction is also
acknowledged by al-Bukhari, though there are those who
have considered the two terms synonymous. The opposite
of iman is kufr, meaning unbelief. According to the view
that Iman means internal submission only, kufr, or unbe-
lief, would not exclude a person from Islam. The ma-
jority of faqlhs and theologians are agreed that Moslems
do not become unbelievers (kafir) by erring in the funda-
mentals of religion (usul al-dln), that is, in dogma.
When a Moslem errs in other than dogma, if he can justify
his opinion by some evidence (burhan), he is saved (naji) ;
and even if he bases his opinion on the erroneous view of
another person (taqlld) he is still saved, according to the
majority view. According to one opinion, Moslems are al-
lowed to call other Moslems kafirs by way of retaliation for
the same insult.

The reason why certain groups of Moslems have been
considered as heretical is not because they differed in the ap-
plication or even the theory of fiqh, since the orthodox sects
will be found to differ among themselves almost as much.
It is mainly because of differences on theological and poli-
tical issues, for these were the principal issues which led
to their secession from the main body of Moslems.1 It
goes without saying that the heretical Moslems have their
own legal systems,2 but they do not interest us here because
we shall be concerned only with the orthodox doctrines.

The differences between the various orthodox schools,

1 Goldziher, Vorlesungen, pp. 237-239.
1 Cf. Juynboll, pp. 31-32.

!38 MOHAMMEDAN THEORIES OF FINANCE

as already anticipated in the chapters on Ijma' and Ijtihad,
relate chiefly to the applications of fiqh, for we have seen
that in the theory of fiqh (usul-al-fiqh) they practically all
follow the same principles. Al-Sha'rani has likened the
several orthodox schools to so many roads, all leading to
the same goal. Thus they have never called one another
heretical (kafir), and they usually allow a shifting of alle-
giance from one orthodox school to another. Of the many
schools, which existed, only six, all of them orthodox, have
been able to obtain a following. They are known as the
six " followed " (matbufah) schools, and are the Hanifite,
Malikite, Shafiite, Hanbalite, and those of al-Thawri and
Dawud. The first four are the ones which have had the
largest following and have survived to our own day; the
last two could not survive beyond the seventh century of
the Hijrah. The rest of the orthodox schools have had
little or no following. Here are the most important of
the orthodox schools.

The Hanifites. The founder of this school is Abu
Han if ah Na'man Ibn Thabit (80/699-1 so/767).1 His grand-
father was brought from Persia to Kufah as a slave and
later obtained his freedom. According to the historian
Ibn Khallikan,1 Abu Hanifah was born early enough to
have met with four of the Companions, namely, Anas Ibn
Malik, 'Abdallah Ibn Aw fa who resided at Kufah, and two
others, but that he never saw them nor obtained from any of
them traditions respecting the Prophet. His disciples have
claimed the contrary. According to the same author, Ja'far
Ibn Rabi'ah said that he had attended the lessons of Abu
Hanifah during five years and never met a man who would
remain silent as long as he ; but that when he was questioned

1 This notation signifies the dates 80-150 Hijrah and 690-767 A. D.
8 Vol. iii, p. 556.

THE FIQH SCHOOLS AND THEIR FOUNDERS 139

on [a point of] jurisprudence he would launch out into a flux
of words, copious as a torrent. Also that in the art of draw-
ing conclusions from analogies (qiyas) he was a master
of the highest rank.1 Abu Hanifah was a man of inde-
pendent means and perfect character. He devoted his life
to the study of religion and law, delivering lectures in Kufah
to his private circle of students. His opinion on legal mat-
ters was universally sought after. He left no works ex-
cept a small book on dogmatics and belief called al-Fiqh
al-Akbar. His so-called Musnad has been compiled by one
of his students and contains the hadiths used by the master.
It was Abu Hanifah who occasioned the famous con-
troversy regarding the use of opinion (ra'y) in legislation,
and this activity on his part brought upon him bitter at-
tacks. The charge made by his enemies was that he em-
phasized the speculative elements at the cost of the hadiths,
whereas his disciples rightly maintained that he used qiyds
only when he could not find a provision in the hadiths. The
truth is that "Abu Hanifah did not constitute an exception
in the use of qiyas but that they all acted alike." x We
have already seen in the chapter on Qiyas how much truth
there was in the allegation that qiyas meant the introduction
of the use of ra'y, on the contrary, qiyas curbed the inor-
dinate and lawless use of ra'y, as it was then practised on all
sides. It is true that Abu Hanifah also introduced the
principle of istihsan which was really a case of using ra'y,
but all the schools were guilty of that practice. The only
difference between Abu Hanifah and the rest was that Abu
Hanifah was conscious of what he was doing and was
not afraid of openly admitting it, while the others did the
same thing in a more or less concealed way. The work

1 Ibid., vol. iii, p. 559.

' Luknawi, Introduction, p. 27 ; Mizdn, p. 54, 1. 10.

I40 MOHAMMEDAN THEORIES OF FINANCE

of Hanifah can hardly be over-estimated, for he made the
first attempt to codify the Mohammedan law, using qiyas
as one of his bases. In doing this Abu Hanifah incidentally
evolved a theory of law (usul-al-fiqh) for the first time.
Abu Hanifah's work was supplemented and completed by
his intimate circle of disciples especially Abu Yusuf, and
Muhammad Ibn-al-Hasan.

Abu Yusuf, Ya'qub Ibn Ibrahim, ( 1 13/731-182/799), was
by far the most important disciple of Abu Hanifah. He
was the one who wrote out the principles laid down by
the master x and occupied in relation to him a position very
similar to that which Plato did in relation to Socrates. Abu
Yusuf held office as Chief Justice in Bagdad under the well-
known calif Harun-al-rashid, who sought his advice on the
most important affairs of state. In answer to certain ques-
tions of the Calif concerning taxation, and other matters
of public law, Abu Yusuf wrote his famous Kitab al-Kharaj,
a valuable essay on those subjects.

Imam Muhammad Ibn al-Hasan al-Shaybani (135/752-
189/804-5) was the younger of the two disciples but by far
the keener. Ibn Khallikan * says the following :

When the imam as-Shafi went to Bagdad, Muhammad Ibn
al-Hasan was there, and they both met frequently and dis-
cussed points of law in the presence of Harun-ar-Rashid.
Al-Shafi'i was (afterwards) heard to say : " I never saw a
person who, when questioned on a point which required re-
flection, did not betray some uneasiness by his countenance ;
but I must except Muhammad Ibn al-Hasan." He said
again : " The information which I learned by heart from
Muhammad Ibn al-Hasan would suffice to load a camel."

1 It is stated in the Mizdn (p. 48) that when Abu Hanifah decided a
point of law and all the doctors of his city were agreed upon it, he
said to Abu Yusuf, " Write it down ".

1 Vol. ii, p. 590.

THE FIQH SCHOOLS AND THEIR FOUNDERS i4I

Muhammad compiled the applications of the principles laid
down by the master into a corpus juris, which served as a
basis for many future books on the applications of fiqh, and
the commentaries, and constitutes the most authoritative
source-book for the Hanifite doctrines.

The Hanifite school is one of the most, if not the most,
important of the four orthodox schools, and counts many
adherents. It owes its reputation mainly to the Ottoman
Turks, who have officially adopted it. It has followers also
in other lands where Turkish influence prevails. Further-
more it has spread in Central Asia, Turkestan, Bukhara,
Samarqand, and Hindustan. The Hanifite principles are,
by far the most humanitarian of all, concerning the treat-
ment of non-Moslems, war captives, slaves, the law of
retaliation, etc.

The Malikites. This is the school founded by Malik
Ibn Anas (95/713-4-179/795) of Medina. Malik was con-
sidered as a representative of the hadith-tolk, notwithstand-
ing the fact that he, too, used qiyas, although perhaps to a
less extent than Abu Hanifah. This is borne out by an
examination of his collection of hadiths, called al-MuwattS,' ',
the first orderly collection of law, where Malik based his
legal decisions partly on his personal opinion. Notice this
statement by 'Abdallah Ibn Qa'nab.1

I went to Malik Ibn Anas, in his last illness and saluted
him ; I then sat down and, perceiving that he wept, I said :
"O Abu 'Abdallah; what maketh thee weep?" and he
answered, " O Ibn Qa'nab, why should I not weep ? By
Allah! I wish I had been flogged and reflogged for every
question of law on which I pronounced an opinion founded
on my own private judgment."

Having lived and acted in the city of Medina, the home of

1 Ibn Khallikan, vol. ii, p. 548.

I42 MOHAMMEDAN THEORIES OF FINANCE

the hadith-lore, Malik occupies a conspicuous place in the
teaching of hadiths. Thus it is stated in the Tah-dhib 1
that according to al-Bukhari, the most reliable chain of
transmission is, 'Malik, from Nafi', from Ibn 'Omar/ but
according to Abu Mansur al-Tamimi it is ' al-Shafi'i, from
Malik, from Nafi', from Ibn 'Omar, from the Prophet/
Malik's teachers were Nafi', a client of Ibn 'Omar, Muham-
mad Ibn al-Munkadir, Abu '1-Zubayr, al-Zuhri, 'Abdallah
Ibn Dinar, Abu Hazim. Malik had many disciples who
taught hadiths on his authority, among others, al-Awza'i,
Al-Thawri, Ibn 'Uyaynah, Al-Layth Ibn Sa'd, Ibn al-
Mubarak and al-Shafi'i. Malik was well-versed in the study
of the Koran and the sunnah, and served as official juris-
consult (mufti). This last circumstance may explain the fact
that Malik was the first one to break away from the purely
casuistic practices of his predecessors and to attempt to for-
mulate the principles underlying the hadiths and the customs
of Medina, and to arrange them topically. The very name
of Muwatta', which he gave to his book, suggests the nature
of the work done. The word means that which has been
made smooth, even.

The school of Malik naturally found much favor in his
native city of Medina and in the western part of the
Mohammedan world, namely, in Morocco, Algeria, and
Tunis, as well as in the so-called Magrib (meaning West),
which included Spain, when that country was under Mo-
hammedan rule; also in the other parts of Africa where
Islam had already been accepted, and in upper Egypt, where
at present it has many followers.

The Shafiites. This school was founded by al-Shafi'i,
Muhammad Ibn Idris (150/767-204/820). He was born
in Gaza and he died in Old Cairo. He taught in Bagdad for

1 P. 53i.

THE FIQH SCHOOLS AND THEIR FOUNDERS 143

time and later in Egypt. The Mohammedans consider
al-Shafi'i, as the vindicator par excellence of the hadiths,
although to the impartial critic this view does not seem quite
well founded, if it is to mean that he did not use ra'y at
all. In fact the difference between Abu Hanifah and al-
Shafi'i was more in appearance than in reality. Al-Shafi'i
freely admitted the lawfulness of the use of qiyas and, as
we have already seen, his method of determining the " ef-
fective " cause for purposes of qiyas was looser than that
of Abu Hanifah. It is true that al-Shafi'i objected to the
principle of istihsan introduced by Abu Hanifah, but he him-
self introduced the principle of istishdb which, supplemented
by the greater liberty of action afforded by his looser
method in qiyas, would be as effective a means of introduc-
ing personal opinion as the istihsan of Abu Hanifah. But
this is true only as a theoretical statement, because it may be
fairly said that in practice al-Shafi'i preserved more faith-
fully the spirit of the hadiths and used them more exten-
sively. It is easy to understand why it should be so, if it is
remembered that al-Shafi'i was of pure Arab origin and
studied fiqh in Mecca, and in Medina under Malik, the cham-
pion of the hadlth-lore. The following quotation from the
Risalah * will well illustrate his tendency to hark back :

God has not given it to any one after the death of the Pro-
phet to express opinion except on the authority of the knowl-
edge ((ilm) that came before him, and such knowledge con-
sists in the Book, the sunnah, the ijmdf , and the sayings and
doings (athar) of the Companions, and then, as I have ex-
plained, in qiyas upon the basis of the preceding, and it is
not allowed to any one to use qiyas until he has learned what
has occurred before him in the way of practices (sunan)
and sayings of the predecessors, and the ijma's and differ-
ences of the people, as well as the Arabic language.

1 P. 70.

I44 MOHAMMEDAN THEORIES OF FINANCE

Al-Shafi'i was very brilliant, and, according to Ibn Khal-
likan,1 he

stood unrivalled by his abundant merits and illustrious quali-
ties ; to the knowledge of all the sciences connected with the
book of God, the Sunnah, the sayings of the Companions,
their history, the conflicting opinions of the learned, etc.,
he united a deep acquaintance with the language of the Arabs
of the Desert, philology, grammar, and poetry ; . . .

Ahmad Ibn Hanbal, one of al-ShafiTs disciples, is quoted
as saying, " al-Shafi'i was to mankind, what the sun is to
the world, and health to the body; what can replace them?"

In contrast to Abu Hanifah who was of a scholastic type
of mind and liked hypothetical speculation, al-Shafi'i was
rather averse to, and probably not so skilful in subtle dis-
tinctions, and therefore relied on the revealed sources when-
ever he could find in them the desired provisions. The
following verses composed by al-Shafi'i bear this out : " The
more experience instructs me, the more I see the weakness
of my reason; and the more I increase my knowledge,
the more I learn the extent of my ignorance." 2

In short, al-Shafi'i was an eclectic,

who came when the law books were already completed into
elaborate systems, and the laws sifted and laid down in a
hard and fast way. He studied the schools of the fore-
runners and learned from the most prominent doctors; he
disputed with the ablest and profoundest and examined
their teachings, and later on worked out from them a method
which combined the Book, the sunnah, the ijrna', and the
qiyas, and so he did not confine himself to one or the other
of these sources, as was the case with others.3

1 Vol. ii, p. 569.

1 Ibid., vol. ii, p. 572.
• Tah-dhlb, p. 62.

THE FIQH SCHOOLS AND THEIR FOUNDERS

145

The above quotation from a disciple of al-Shafi'i, al-
Nawawi, although somewhat exaggerated, gives a good idea
of the work done by al-Shafi'i.

The avowed object of al-Shafi'i was to reconcile fiqh
and tradition, and to those concerned he seemed to have suc-
ceeded in doing this (jama'ahu bayn al-fiqh wa 'l-sunnah).
This explains the circumstance that when al-Shafi'i appeared
in Bagdad, there followed a rapid conversion to his school.
The most prominent disciples and followers of al-Shafi'i
were Ahmad Ibn Hanbal, Abu '1-Thawr, al-Za'farani, al-
Tabari, al-Mawardi, Imam-al-haramayn, and others.

According to the Tah-dhib l al-Shafi'i wrote 113 works
bearing on interpretation (tafslr), fiqh, literature, etc. The
works relating to fiqh are, the Risalah, the Kitab al-Umm,
the two /ami's and Mukhtasars of Muzani, the Mukhtasar
of Rabi', etc. The most renowned commentaries upon al-
Shafi'i's writings are the Ta'liqs of Abu Hamid al-Isfara'ini,
al-Tabari, and al-Mawardi.

At present, the followers of this school are found in the
Strait settlements, the Malayan districts of Siam, the coast
of Hindustan, (Malabar and Coromandel), in Southern
Arabia, especially in Hadramut, in Bahrayn, on the Persian
Gulf, in certain Central Asian districts, in Dagistan, and in
the German East-African colonies. Finally, some Moham-
medans in Syria follow the Shafiite doctrines in the field of
private life only. This is also true of those found in Arabia
and Egypt.

The Hanbalites. This is the school founded by Ahmad
Ibn Hanbal (164/780241/855). Ahmad was a disciple
of al-Shafi'i and, next to Dawud al-Zahiri, he was the
staunchest opponent of the ra'y-iolk. He makes use of
qiyas very little, and bases his system mainly on the sacred

1 P. 67.

I46 MOHAMMEDAN THEORIES OF FINANCE

texts. He is uncritical in the selection of his hadiths, of
which he compiled about 28,000 in his Musnad. He was
a very conservative theologian, and got into trouble on
that account. His followers are found now in Central
Arabia, the inland districts of 'Oman, and on the Persian
Gulf. The others are few in number and are scattered in
out-of-the-way localities, in a number of Central-Asian
cities, and in the country populations of some isolated Syrian
villages.1

The Z ah i rites. This is the school founded by Dawud
Ibn 'AH (1270/883-4), who threw qiyas overboard and
adhered to the letter (al-zahir) of the Koran and the
hadiths, hence his name al-zahiri. His school at one time
spread westward as far as Spain, when that country was
under the Mohammedans, but at present it boasts no
adherents.2

AI-Awza'i, 'Abd-al-rahman Ibn 'Amr Abu 'Amr, born in
Baalbek, (88/757-157/774) was another founder of a
school. He was reputed for his ascetic tendencies and good
character, and was called the Imam of Syria. He had fol-
lowers even in Magrib, before it went over to the school of
Malik. Among his contemporaries were Sufyan, Malik,
Ibn al-Mubarak, and others. According to Hiql, who was
the most reliable of the persons who quoted al-Awza'i, the
latter decided 10,000 and according to another version, 80,-
ooo legal questions." 'Abd-al-rahman Ibn Mahdi said : "The
imams of hadlth are four, al-Awza'i, Malik, Sufyan al-
Thawri, and Hammad Ibn Zayd."

AI-Thawri, Abu 'Abdallah Sufyan Ibn Sa'id of Kufah
was another full mujtahid. Among those who quoted him

1 Juynboll, p. 29 ; Kremer, p. 499.

'Juynboll, p. 25; Goldziher, d. Zahiriten, p. 27; Kremer, p. 500.

» Tah-dhlb, p. 384-

THE F1QH SCHOOLS AND THEIR FOUNDERS

were, Malik, al-Awza'i, and others. He was well-known
for his piety, and his thorough knowledge of the hadiths.
Thus Abu 'Asim said: "Al-Thawri is the Commander of
the Believers in the matter of hadiths." *

1 Tah-dhib, pp. 286-8.

CHAPTER XI
CONCLUDING REMARKS

IN Part I. we have attempted to give a comprehensive view
of Mohammedan law, as a background for the understand-
ing of Part II., as well as for an intelligent determination
of the extent to which non-revealed or external elements
have gone into the making of fiqh or Mohammedan law.
Thus in a preliminary chapter we saw that the word
sharfah was the generic name given to the ensemble of
religious truths taught by Mohammed; that fiqh was the
body of legal prescriptions concerning human conduct which
was derived from the sharl'ah ; and finally, that usul-al-fiqh
was the connecting link between fiqh and sharifah, since it
denoted the discipline which derived the former from the
latter. In the following chapters we examined the four
sources or bases from which fiqh was derived by usul-al-fiqh,
and which were accepted by the four most important fiqh
schools. These four sources, the reader will readily remem-
ber, were the Koran, the sunnah, the ijma' and the qiyas. In
the course of these chapters special emphasis was laid on the
discussion of the rules concerning the transmission of the
sunnah, and of the principles regarding the investigation of
the reasons for the divine prescriptions for purposes of
reasoning by analogy. In the next chapter we took up the
question of the relative importance of these four sources
and the degree to which they overruled one another. We
then examined the principles of legislation accepted by only
one or more schools, and we treated the principle of istihsan
or personal opinion, owing to its importance, in a separate
148

CONCLUDING REMARKS

149

section. A special chapter was devoted to a brief, though
comprehensive, exposition of the various classes of sharl'ah
values. We next inquired into the principles governing the
exercise of independent thought (ijtihad) as well as the
transmission of others' opinions and the duties of the illiter-
ate ((ammi) when they want to determine the law on con-
crete cases. To complete the discussion, in the last chapter,
information was given concerning the most important
orthodox schools of fiqh and the origin and content of
orthodoxy.

A close examination of the Mohammedan legal system,
even if one should confine himself to what little of it may
be learned from the preceding chapters, will at once reveal its
highly mechanical nature. Like all systems which lack the
evolutionary outlook on life, it works under the assumption
that social phenomena, complex as they are, may be reduced
to hard-and-fast rules to which the intricate and nondescript
situations of real life must fit themselves as best they can.
Under the plea that reality (batin) cannot be known but to
God alone,1 and that for the purposes of law, the outward
signs (sahir) of reality may be treated as reality itself,
the latter is entirely lost sight of, and so the whole discus-
sion is carried on in terms of the signs of reality instead of
of reality itself. Of course, the signs correspond to reality
only in what the statisticians would call the mode of the
cases, and the chances of this correspondence become fewer
and fewer as one gets further and further away from the
initial premises.

To cite one instance, we saw that a matter so subtle as the
exercise of independent thought (ijtihad) has been reduced
to mechanical laws. For example, the doctors have ruled
that one may not exercise independence of thought until he

1 Cf. Risdlah, p. 69, 1. I.

MOHAMMEDAN THEORIES OF FINANCE

has met certain requirements. Of course such a rule is all
right in so far as it encourages thoroughness, but it is fatal
in at least two ways: (i) it shuts off contributions likely
to come from persons who have not as yet met all the re-
quirements, and (2) it excludes those that might come from
outsiders who, being engaged in other studies, have likewise
failed to fulfill the requirements. It is the familiar case of
the conservative theologian who cries halt to the scientist
when the latter " steps over the line."

The most fatal consequence of a mechanical system,
however, is the excessive feeling of confidence and certainty
into which it lulls its adepts. When to all appearances the
complex and organic relationships of social life have been
reduced to law and order, one cannot help getting into a
false sense of security and optimism. Such a state of mind,
acts like a selective screen that shuts off those stimuli, which
if let through might expose the deceptiveness of the appear-
ances. The Mohammedan legal system offers a good ex-
ample of optimism carried too far. It inspires its adepts
with the feeling, that at no point in the process, from the
divine inception of the law down to the detailed legal pro-
visions in the fiqh-books, or to the carrying-out of these
provisions by the believers, is there any weakness where
doubt might enter. Thus to the Mohammedans it is a
matter of certainty that the Koran and the sunnah are
genuine expressions of the divine will. Of course there is
a possibility that their meanings may have been misunder-
stood, but the believer need have no misgivings on this point.
For if a passage concerning the meaning of which there is
doubt is one on which an ijmaf has been reached, certainty
is assured by that fact ; and if no ijma' has been reached, his
conscience may still be set at ease by resort to intuition
(taharri), since the fact that one of the constructions appeals
to the intuition is sufficient guarantee of its truth. Finally,

CONCLUDING REMARKS i$i

if the question were raised that the law, although well under-
stood, is misapplied, resort to intuition would again remove
all doubts.

In the light of the above it is easy to understand why the
Mohammedan doctors claim with great optimism that the
various bases used in deriving the law from the shari'ah,
may all be reduced to the four bases of fiqh l previously
mentioned, and that the latter in turn are based on and jus-
tified by the Koran and the sunnah, the two primary and
genuine sources. Let us now critically inquire how true
this assertion is and how far the primary sources are re-
vealed, namely, how far they represent genuine records of
the Prophetic utterances and conduct, and how far the other
sources would in theory exclude external and, especially,
intellectual influences. In taking as our basis of compari-
son the revealed sources we must consider them in their en-
tirety, although it is a fact that they have gone through an
evolution considering that they have reached their comple-
tion only at the death of the Prophet, that is, in the course
of nearly a quarter of a century. Doubtless during this
long period external, that is, non-Arabian influences, have
made themselves felt, but their effect on the revealed sources
in the life-time of the Prophet has indeed been very insigni-
ficant, compared to what it has been on the Mohammedan
law since the Prophet's death.2 Then too, there is an added
reason for taking as our basis the revealed sources in their
entirety, because if we should pass the natural limit afforded
by the death of the Prophet, we would not know where to
stop, and our inquiry would have to be pushed far back
into preislamic history. Viewed from this standpoint, the
various bases of fiqh are as follows :

1 C'f. Taqrir, vol. ii, p. 212.

a In Part III. we shall see to what influences the revealed sources have
been subject as regards finance.

I52 MOHAMMEDAN THEORIES OF FINANCE

The Koran. There is little doubt that the Koran is on
the whole a faithful record of the statements of the Prophet,
modern scholars being agreed on this point.

The Sunnah. Unfortunately we cannot say the same
thing concerning the sunnah, not only because it is a mat-
ter of historical record that falsification and invention of
hadiths were extensively practised, but also because, as we
have seen, the rules concerning the transmission of the
sunnah are by no means a sufficient guarantee of its truth.
Moreover, we know that one did not need to resort to falsi-
fication to support his claims when there could be found
a justification for them in the sunnah of the Companions,
since the sunnah of the latter was almost as binding as
that of the Prophet.1 It would not therefore be too rash to
assume that certain new elements have found their way into
fiqh in the garb of sunnah. In this respect the sunnah of
the Companions acquires especial importance when we re-
call that the spread of Islam throughout Syria, Mesopo-
tamia, 'Iraq and Egypt was completed in a very short time
even before many of the Companions had died, for it means
that most of the new situations which Islam faced in its ex-
pansion, received their solution at the hands of the Com-
panions themselves. Of course this solution, as we shall
see later in Part III., was almost always in the way of
sanctioning the existing practices and institutions. In other
words, by the time the sunnah reached its final and settled
form in the famous collections of al-Bukhari, Muslim, and
others, many a foreign institution and idea had already
found its way into Mohammedan law, either through sanc-
tion by the Companions or even through falsification of
the sunnah.

The process of absorption from outside and adaptation

1 Cf. supra, Classification of the Sharl'ah Values.

CONCLUDING REMARKS 153

to changing conditions inside by no means stopped after the
crystallization of the sunnah into the famous hadith-col-
lections, as has just been indicated, but went on as before,
though this time through the medium of the remaining
sources of legislation, such as ijma' and qiyas.

The Ijma' may serve to introduce into the law new ele-
ments in two ways : ( I ) In so far as its constituent opinions
consist in qiyases, ijma' would naturally be as good as qiyas.
In fact it would be somewhat more effective than qiyas,
since the evidential force of ijma' is based mainly on the
fact of the consensus rather than on the merits of the in-
dividual qiyases. (2) Ijma in many cases would be an-
other form of sanctioning custom. For example, if one
doctor should express an opinion in approval of a recent
custom, and the others should keep silent, we would have
an ijma. Thus we know that the legal institution of
istisna' was introduced into the law by way of ijmae.

Qiyas. It is evident that in matters of analogy the ques-
tion whether or not you are departing from your proto-
type, depends on whether or not the basis of analogy,
namely, the causal attribute (( illah) is in accordance with
the spirit of the prototype. Even if we should disregard
the extreme views relative to the determination of this
'illah and confine ourselves to the orthodox views, we would
still find it to be true that they offered no adequate guaran-
tee that in applying qiyas the revealed texts were not de-
parted from. Take for instance the prohibition of wine-
drinking. In order to make a qiyas on its basis, in the first
place, the cause of the prohibition must be determined.
Right here there would be an opportunity for displaying a
great deal of scholastic subtlety whereby to determine as
cause exactly that attribute of wine-drinking which would
best serve the end in view. For instance, supposing that
there is in the sources no prohibition against gambling

154

MOHAMMEDAN THEORIES OF FINANCE

and that we want to bring this under the prohibition,
it would be easy to do it by considering as the cause of pro-
hibition in the case of wine-drinking a quality of the latter
which is also common to gambling, for example, excite-
ment. But there is no need to go to even that much trouble,
for it is not necessary that gambling should have precisely
the quality which was the cause of prohibition in the case
of wine-drinking. It is sufficient if gambling has a quality
which, while not the very same quality, is of the genus of
the quality which was the cause of prohibiting wine-drink-
ing. For instance, one might say that wine-drinking had
the quality of causing drunkenness, and gambling, excite-
ment, and that both of them were of the genus of evil, and
that consequently gambling came by analogy under the
prohibition. It is true that the genus must be a proximate
genus, but this does not materially affect the situation, for
one might say that the cause was a genus of intellectual evil,
in that they both disturbed the mental processes temporarily,
or that it was a genus of financial evil, etc. Even this does
not exhaust the possibilities, for just as in the case of the
causal quality one may take the proximate genus instead
of the very same quality, so also in the case of the value
sought to be applied to the new case, one may apply a value
of the same genus instead of the identical value. Thus
arguing that prohibition is a genus of restriction one might
only restrict gambling instead of entirely prohibiting it,
as was the case with wine-drinking. It must be admitted
here that the above examples represent somewhat strong
cases, yet they are by no means exaggerated. In general
one would not have to stretch things so far, for the purpose
in hand would be much better served by using a more liberal
principle like istihsdn.

Istihsan, taking it in the sense used by the Hanifites, doubt-
less is a more effective means than qiyds for introducing new

CONCLUDING REMARKS 155

elements, since in its case the rules for determining the
cause are even subtler than in the case of qiyds, and conse-
quently afford greater possibilities. All that is needed is to
discern in the new element whose introduction is desired
some quality that is shared by a matter already approved or
prohibited by the sources and the object is achieved.

The principle of istislah, made use of by the Malikites, is
probably the most effective of all, since it dispenses with the
necessity of rinding for its use a justification in the sources.

Custom, as will be recalled, is another important source
of legislation, since in matters which are not mentioned,
in the sources, according to the Hanifites, it is a direct
source of law. To a certain extent custom is a source
of law even in matters which are mentioned in the sources ;
moreover, custom supersedes the doctors' opinions when
these have been based on custom and it has meanwhile
changed. The significance of this last point will be fully
grasped when it is remembered that the doctor's opinions
are largely based on custom.

Space will not be taken to discuss the principles concern-
ing the interpretation of texts (tafsir wa ta'wll), since they
are of slight importance in relation to the question of the
extent to which foreign influences may have been allowed
to influence Mohammedan Law. Suffice it to say that some
doctors who did not acknowledge qiyas achieved practically
the same result through a process which they called inter-
pretative.

Without further illustrations, the preceding discussion
proves beyond doubt, that so far as theory is concerned,
there was practically no check to the introduction into fiqh
of foreign institutions and ideas.1 Indeed, in Part III. we
shall find this to have actually been the case as regards

1 Cf. Kremer, pp. 53^-547-

I56 MOHAMMEDAN THEORIES OF FINANCE

finance which, as we have seen in Chapter L, is an integral
part of fiqh. If, therefore, fiqh has been on the whole an
independent development, especially in its later stages of
growth, it is not because there was a theoretical obstacle
to non-revealed external influences, but simply because there
were not enough of the latter.

BIBLIOGRAPHY

THE following bibliography is intended for use in the study of
Mohammedan law directly from the Arabic sources, and, therefore,
works on the subject written in European languages, as a rule, are not
indicated, since a very good account of them may be obtained from
the works of Juynboll and, especially, of MacDonald. The chief aim
in writing this bibliography is to give a ^>ue d'ensemble of the litera-
ture and to furnish prospective students with the necessary bearings
in approaching the vast subject of Mohammedan law. To this end, the
chief works written on the different disciplines that make up, or are
preliminary to the study of, Mohammedan law have been explained;
works generally referred to and quoted in the sources have been indi-
cated, and, so far as possible, the sources have been presented in a
chronological order and their nature briefly explained. Although many
books which are not extant in printed or manuscript form have been in-
cluded, the list is by no means exhaustive, as the object has been selec-
tion rather than collection.

The Arabic sources fall into three fairly distinguishable classes: (a)
The so-called texts (ma/n) or compendiums (mukhtasar) ; (b) the
commentaries (shark) and glosses (hdshiyah, taqrlr, ta'liq) ; (c) the
collections of legal opinions (fatwa). The compendiums give in a
more or less general way the principles of law respecting concrete
cases and are intended to serve as a basis of instruction and as a
mnemonic help. As a rule they do not mention the arguments, and do
not indicate the views of other schools. As they are intended to be
learnt by heart by the students, the ideal that the writers of such com-
pendiums set before themselves is to make them as brief, but also as
comprehensive, as possible. Probably the Mukhtafar of Khalll has ap-
proached this ideal more than any other. Various devices are used to
hint, without using more words, whether a certain view was held by
the founder of the school (wow) and whether it is an independent
view (qawl) or merely an application by analogy (wajh, qawl muk-
harraj) of an existing view. The persons responsible for a given view
and the view to be preferred out of the many given views are also
hinted. The Hanifite usage in this last respect is to cite first the view
favored by the writer of the text, unless the text gives the arguments
also. In such case, first the views and then the respective arguments

157

I5g BIBLIOGRAPHY

are presented, — the view and argument favored, last. While on the
whole no established usage has prevailed in this connection, in some in-
stances a fairly common understanding seems to have been reached.
A thorough study of this subject would be most helpful for the proper
understanding of the sources. Probably the chief distinction between
a commentary and a gloss is that a gloss is more sketchy and goes into
questions of grammar and syntax more often and more at length.
The distinction between so-called fatwa collections and works on law
proper {fiqh), as the words are used by the doctors, is often shadowy.
Thus the name fatwa collection is given to works, such as the 'Alam-
kiriyyah, which by no means answer questions on concrete actual
cases but simply give the legal principles on particular points as deter-
mined in the first instance by early doctors or as involved in existing
fatwas on actual cases. These principles, however, are still too general
to be applied to actual cases without further interpretation. As it
is, the difference of a work on fatwas from a work on fiqh proper
reduces itself to the fact that the latter, besides being somewhat less
full as to details, also gives the motives and grounds and is meant to
furnish a more or less scientific training whereby one might apply the
law to new cases.

The statements occurring in the fiqh books of one school concerning
views held in another school are not always accurate and must be re-
ceived with caution. As a rule, greater caution is needed in regard to
books that may not strictly speaking be called fiqh books, such as the
work of al-Mawardi, than would be necessary for a work on fiqh
proper, such as the Hiddyah or the Minhdj. Works of the latter type
being an object of constant study and comment as well as of actual
application have remained, relatively speaking, immune from text cor-
ruption. Besides, it is easy to correct any corruptions that may have
crept into the text by reference to the source books of the school on
which they are invariably based. Works of the former type, however,
have not had the benefit of these corrective agncies to the same extent.

Abbreviations and Signs. — Words printed in black-face type indicate
the titles under which works have been referred to in this dissertation.
Words underlined indicate the shorter names by which persons and
books are commonly referred to by the doctors. Dates in parentheses
after titles of books and names of persons indicate years of writing
and death, respectively. Devotional phrases such as " May He be
exalted " or " May God have mercy on him," invariably used by doc-
tors after the mention of God, and persons of note, have been omitted.
Where the volume has not been indicated, the first volume is meant,
unless another volume has been expressly indicated. A. = Ahmad;
Ism. = Isma'il; Ibr. — Ibrahim; 'Al. = 'Abdallah; 'Ar. = 'Abd-al-
rahman; 'Aq. =: 'Abd-al-qadir ; H. = Hasan; Hu. = Husayn; Su. =

BIBLIOGRAPHY 159

Sulayman; M. = Muhammad; Yu. = Yusuf ; a. = Abu (father of) ;
b. = Ibn (son of) ; K. = Kitdb. The remaining are self-explanatory.

BIOGRAPHICAL

COMPANIONS AND FOLLOWERS : (1) Tabaqdt al-Sahdbah wa
'l-Tdbi'in or simply Tabaqdt b. Sa'd by a. 'AI. M. tx Sa'd al-Zuhri
al-Ba§ri (230). "The earliest and most comprehensive" (Rieu). (2)
Al-Ifdbah A Tomyiz al-Sabdbah, by Shihab-al-din a, '1-Fatfl A. b. 'Ali
b. Hajar al-'Asqalani (852), the Shafiite. Cairo, 1323. Contains the
Istidb al-Sahdbah fi Ma'rifat al-Afhdb by a. 'Amr Yu. b. 'Al. b. 'Abd-
al-barr (463), the Malikite, and the Usd al-Gdbah fi Ma'rifat al-
Sabdbah, by 'Izz-al-din a. '1-H. 'Ali. b. al-Athlr (-al-din) al-Jazari (630),
and more, in all 12,279 lives, omitting all but the Companions. Abridged
by Jalal-al-din 'Ar. al-Suyuti (9") in the 'Ayn al-lsdbah.

TRUSTWORTHY REPORTERS (al-thiqdt) : K. al-Thiqdt — }yy
al-Hafiz a. Khatim M. b. Hibb&n al-Busti (354).

UNTRUSTWORTHY REPORTERS (ruwdt) : (1) Al-Kdmil fi
Ma'rifat al-Du'afd1 wa 'l-Matrukin min al-Ruwdt—by a. 'AL A. b. M.
b. 'Adi (365). Considered as standard by the doctors. Al-Daraqutni
asked to compose a work on untrustworthy (du'afa) reporters, an-
swered: " Do you not have the book of b. 'Adi?" "There is sufficient
in it; it cannot be augmented." (H. Khal.) The work contains the
name of every reporter whose trustworthiness was questioned even if
he has already been classed as reliable (thiqah). (2) Mlzdn al-I'tiddl
fi Naqd al-Rijal—by Shams-al-din a. 'AI. M. b. A. al-Dhahabi (748).
According to b. Hajar, the most comprehensive, except that the author
in order to avoid criticism omitted the names of Companions and foun-
ders of schools who obtained a following (H. Khal.). Arrangement
alphabetical. The Sahihs, where the hadlths reported by these untrust-
worthy reporters are cited, are hinted.

REPORTERS IN GENERAL: (1) The Tdrikh — by M. b. Ism.
al-Bukhari (256). Reporters grouped in classes. (2) Al-Kamdl /»
Ma'rifat (or Asma} al-Rijdl—by a. M. 'Abd-al-gam b. Abd-al-wahid
al-Muqaddasi (600). Alphabetical list of the reporters mentioned in
the six Sahihs with biographical notices. The Tah-dhib al-Katndl, etc.,
is an enlargement by Jamal-al-din Yu. b. al-Zaki al-Mizzi (742). "This
is a large work, to compose the like of which is believed impossible" (H.
Khal.). The work also remarks about the reliability of the reporters.
A further abridgment is the Tah-dhib al-Tah-dhlb by b. Hajar (852).
A still further abridgment by b. Hajar is the Taqrib al-Tahdhib, with
additions. Lith. Dihli, 1320. Gives full names, places, dates of death
and degrees of reliability.

BIBLIOGRAPHY

TRADITIONISTS (Huffdg} : Tadhkirat al-Huffdg—by Shams-al-din
M. b. A. al-Dhahabi (748). 'Haydarabad. It gives lives of students
of hadlth whose function is to decide whether a certain reporter is
reliable, etc.

GENERAL— (1) Tarlkh 'Ulama al-Andalus, by a. al-Walid 'Al. b.
M. al-Azdi b. al-Fara^i (403). Ed. Fr. Codera, Bibl. ar. hisp., vols. vii-
viii, Matriti, 1890. Gives briefly in alphabetical order lives of 1,642
doctors, jurists, etc. of Spain. Indexes on persons, books and places
appended. Scanty in bibliographical information. A continuation of
this work is the Al-Silah fi Akhbdr A'immat al-Andalus (534), by a.
al-Qasim Khalaf b. 'Abd-al-malik b. Bashkwal al-Qurtubi (578). Ed.
Fr. Codera, Bibl. ar. hisp., vols. i-ii, Matriti, 1883. (2) Tdrikh Bagdad—
by a. Bakr A. b. 'AH al-Khatib al-Bagdadi (463). A celebrated exten-
sive history, particularly of the learned men, of Bagdad. (3) Tabaqdt
al-Fuqahd\ by a. Ishaq Ibr. b. 'AH al-Shirazi (476), the Shafiite. It
gives the lives of the jurists among the Companions and Followers and
those of the founders of schools and their disciples. (4) Bugyat al-
Multamis fi Tdrikh A hi Rijdl al-Andalus (592), by a. Ja'far A. b.
Yahya al-Dabbi al-Qurtubi. A completion and continuation of the
Jadhwat al-Muqtabis, etc. by a. 'Al. M. b. a. Na§r al-Humaydi (488).

(5) Irshad al-Arlb ila Ma'rifat al-Adlb, known as Mu'jam al-Udabd'
or Tabaqdt al-Udabd', by Yaqut_b. 'Al. al-IRumi (626). E. J. W. Gibb
Memorial Series. Leyden, 1907. Gives lives of literary persons, such
as grammarians, lexicographers, genealogists, Koran readers, chronicle
writers, historians, copyists, and famous scribes. Gives lives of jurists
in so far as they have been literary writers, such as, e. g., al-Shafi'i.

(6) K. Wafaydt al-A'ydn wa Anbd' Abnd' al-Zamdn — by Shams-al-din
A. b. M. b. Khallikan (672), the Shafiite. Cairo, 1892, 2 vols. (b.
Khali.) (with the Shaqd'iq on the margin). English translation by M.
G. de Slane (Ibn Khallikan) in 4 vols. Paris-London, 1843-7. A cele-
brated work giving lives of persons of note in every line. Omits Com-
panions and early califs as too well-known. Alphabetical with respect
to real names. Many supplements have been written, among others the
Fawdt al-Wafaydt by M. b. Shakir al-Kutubi (764), who claims to
have also supplied omissions mentioned. (7) Tah-dhib al-Asmd' wa'
l-Lugdt — by a. Zakariya' Yahya b. Sharaf al-Nawawi (676), the Shafiite.
Ed., F. Wustenfeld, Gottingen, 1849 (first part only). A very fre-
quently quoted, useful work. First part (qism) gives the proper
names, and the second part the common names and technical terms
occurring in the Shafiite fiqh books, Mukhtasar al-Musani, Muhadh-
dhab, Tanbih, Wasit, Wajis, and Rawdah. Alphabetical with respect
to real names, surnames, etc., grouped in separate sections. The lives
given are mostly of Companions and Followers, with a few of the

BIBLIOGRAPHY l^l

leading jurists of different schools, chiefly the Shafnte. (8) Al-Nujum
al-Zdhirah fi Muluk Mi$r wa 'l-Qdhirah — by Abu '1-Mahasin Jamal-
al-din Yu.'b. Tagribirdi (874). Ed. F. G. Juynboll, Lugd. Batav., 1855-
61 (as far as year 365). Gives useful information in connection
with necrologies. (9) Husn al-Muhadarah fi Akhbdr Mi$r wa 'l-Qdhi-
rah— by Jalal-al-din al-Suyu|i (911). Cairo, 1299. A many-sided his-
tory of Egypt, giving short notices on the inujtahids (pp. 161-88) and
jurists (pp. 224-74) who lived in Egypt, with their works mentioned.
(10) Nafb al-Tib tnin Gu$n al-Andalus al-Ratib wa Dhikr Waslr-ha
Lisdn-al-din b. al-Khafib — by a. al-' Abbas A. b. M. al-Maqqari al-Tilim-
sani (1041), the Malikite. Ed. R. Dozy, etc., Leyden, 1855-61. A large
work giving, among other matter, lives of Spanish doctors who trav-
eled eastward and doctors who traveled to Spain, and mentioning
names of many books, with some bibliographical information. The
arrangement of the book follows no order. The indexes at the end
unsatisfactory.

.HANIFITE— (1) Al-Jawdhir al-Mutfah, by Muhyi-al-din 'Aq. b. a.
al-Wafa' al-Qurashi al-Mi§ri (775). Contains many mistakes because
it is the first work of its kind ; " therefore the man should be ex-
cused" (H. Khal.). Supplement: Al-Guraf al-Aliyyah A Tardjim
Muta'cikhiri al-Hanafiyyah, by Shams-al-din a. 'Al. M. b. 'AH b. Tulun
(955)- Contains about 1,200 lives, mostly of eighth, ninth and tenth
centuries (Rieu). Condensation by Ibr. b. M. al-Halabi (956), the
Hanifite, including only jurists who left works and whose names are
mentioned in the books. (2) Tdj al-Tardjitn_ £ Tabaqdt al-Hanafiyyah —
by a. al-Fadl Zayn-al-millah wa'l-din alUQasim b. 'Al. b. Qutlubuga
(879). The work deals only with jurists who left writings — in all, 330
persons. (8) Al-Shaqd'iq al-Nu'mdniyyah fi Ulamd' al-Dawlah al-'Uth-
indiiiyyah — by Mawla A. b. Mustafa Tashkeuprizadeh (968). Con-
stantinople, 1851-2, with additions and supplements by Majdi and 'Ata'i
(Fliigel). Also printed on margin of Wafaydt by b. Khallikan. The
work contains about 600 lives. It was written in order to save from
oblivion the doctors ('ulatnd") who lived and flourished in the Otto-
man Empire. Many supplements were written. H. Khal. speaks in the
highest terms of a supplement in 7 vols. by Ata'-allah New'izadeh.
(4) Tabaqdt al-Ulamd' al-Hanafiyyah, by 'Ali Tchelebi b. Imru'-allah
Hzadeh (979). Gives in brief lives of 231 persons, in 21 classes.
(•">) Kataib A'ldm-al-Akhydr tnin Fuqahd' Madh-hab Nu'mdn al-Mukh-
tdr. also called al-Kataib al-Kaffawiyyah, by Mahmud b. Su.jil-Kaffawi
(ooo). It treats of the" Hanifite doctors "from the Prophet down" to
his own time, giving lists of their teachers and students ('an'andt),
peculiar legal opinions as found in famous fatwa collections, their
works, and other relevant information. An esteemed work. An abridg-

162 BIBLIOGRAPHY

ment of it is the Al-Fawd'id al-Bahiyyah ft Tardjim al-Hanafiyyah ma'
al-Ta'liqdt al-Saniyyah 'ala 'l-Fawd'id al~Bahiyyah, by a. al-Hasanat M.
'Abd-al-hayy al-Luknawi (1304). Kazan, 1321; Cairo, 1324. (6) Al-
Tabaqdt al-Saniyyah fi Tardjim al-Hanafiyyaht by Taqi-al-dm b. 'Aq.
al-Tamimi al-Gazzi (1005-10), with an introduction. Alphabetically ar-
ranged with respect to real names (asmd1). Separate sections for
ethnic (ansdb} and honorary names (alqdb). "This is the most ex-
cellent of the works composed on the lives of Hanifites (ahl al-ra'y) :
It contains the lives of the Shaqd'iq and later works until his time,
namely 993, the year of its completion" (H. Khal.). (7) Fliigel, G.,
"Die Classen der hanefitischen Rechtsgelehrten," Abhandl. der philol.
hist. Classe der kdnigl. sdchs. Ges. der Wiss., vol. iii.

SHAFIITE— (1) Tabaqdt al-Shdffiyyah, by Taj-al-din 'Abd-al-wah-
hab b. A. (b.) al-Subki (771). Cairo, 1324. Overflowing with informa-
tion (H. Khal.). Intended by the author to include the name of every
jurist named in the current books of his time. Often quotes long passages
from their works and relates at length debates, etc. Alphabetical (not
strictly) with respect to real names (asmd3) within each group, except
that jurists whose name is Ahmad, then those whose name is Muham-
mad, are treated first. First group gives Al-Shafi'i's personal disciples;
the other groups consist of jurists who died within same century.
There is an abridgment of it by himself. (2) Qald'id al-Fud,ala wa
'Uqud al-fumdn (769) — by Jamal-al-din a. M. 'Abd-ar-rahim b. al-H.
al-Isnawi (772). Alphabetical with respect to names or surnames by
which jurists are commonly known. Based on the work of b. al-'Salah
and others. (3) Tabaqdt al-Shdffiyyah — by Taqi-al-dm a. Bakr b. A.
b. (Qadi) Shuhbah, al-Dimashqi (851). It gives lives of those "whose
names are widespread and about whom the student needs to know,"
as the author claims. Treats in 29 classes of 20 years each ; alphabetical
within each class. (4) Wiistenfeld, H. F., "Der Imam el-SchafVi, seine
Schiiler und Anhanger." Konigl. Gesel. d. Wiss. zu Gottingen, Abdanl.t
vols. 36-37. Based on the works of al-Nawawi, Al-Subki, al-Isnawi, b.
Shuhbah, b. Khallikan, al-Maqrlzi, al-Suyuti, etc.

MALIKITE— (1) Tartib al-Maddrik wa Taqrib al-Masdlik li Ma'ri-
fdt A'ldm Madh-hab Mdlik—by al-Qadi 'lyad b. Musa al-Yahsabi (544).
An esteemed work that is much quoted. (2) Al-Dlbdj al-Mudhahhab
fi Ma'rifat A'ydn Ulamd' al-Madh-hab, also Tabaqdt al-Mdlikiyyah — by
Burhan-al-din Ibr. b. 'Ali b. Farhun (799). Fez, 1802. An elegant
work (H. Khal.). Supplements: (a) Tawshlh al-Dibdj wa Hilyat
al-Ibtihdj—by Badr-al-din M. b. Yahya ^1-Qarafi (975 or 1008). (b)
Kifdyat al-Mukhtdj ila Ma'rifat man Laysa fi 'l-Dibdj — by A. Baba
b. A. al-Tunbukti al-Sanhaji (1032). Author claims to have also sup-
plied omissions of the Dibdj. (Cf. "Les Tabakat Malekites" by E. Fag-
nan in Homenaje o D. F. Codera, Zaragoza, 1904.)

BIBLIOGRAPHY 163

\NBALITE— (1) Tabaqdt al-Hanboliyyah (513), by al-Qadi a.
'1-Hu. M. b. M. al-Farra' al-Bagdadi (526). Supplemented first down
to 750 by Zayn-al-din a. al-Faraj 'Ar. b. A. b. Rajab (795) down to
750, then by Yu. b. H. al-Muqaddasi, down to 871. (2) Al-Manhaj
al- Ahmad fi Tardjim Asbdb al-Imdm Ahmad — by 'Ar. b. M. al-'Umari

laymi (927), the Hanbalite. Detailed work on famous Hanbalites
down to his time, supplying many omissions of the former.

SHI'ITE— Majdlis al-Mu'minin (996), by Nur-allah b. Sharif al-
Husayni al-Shushtari. A frequently quoted work.

BIBLIOGRAPHICAL

(1) K. al-Fihrist, or Fihris al-Ulum (377), by a. '1-Faraj M. b. Ishaq
al-Warraq al-Bagdadi. Ed. G. Flugel, Leipzig, 1871. A list of the Arabic
books written up to 377 topically arranged with occasional bibliographical
details. Good for earliest writers. (2) Fihrist Kutub al-Shfoh, by JL
Ja'far M. b. al-H. al-Tusi (459), the Imamite. Ed. A. Sprenger. Bibl.
Ind., nos. 60, 71, 91, 107. Calcutta, 1853-5. Gives list of Shi'ite works.
According to the Iktifd', it includes the Nadad at-Itfdb of 'Alam al-Huda
on famous Shi'ites. (8) Fihrist ma Rawdhu 'an Shuyukhihi min al-
Dawdwin al-Musannafah fi Durub al-'Ilm wa Anwd' al-Ma'drif, by a.
Bakr M. b. Khayr al-Ishbili (575). Ed. Fr. Codera and J. R. Tarrago,
Bibl. ar. hisp., vols. ix-x, Caesaraugustae, 1894-5. A list of more than
1,400 book-titles topically arranged with full lists of their transmitters
but scant bibliographical information. There is a chapter on the many
Fihrists transmitted down by the author. (4) K. al-'Ibar wa Dlwdn
al-Mubtadd1 wa 'l-Khabar fi Ayydm al-'Arab wa 'I- A jam wa 'l-Barbar,
etc., by a. Zayd 'Ar. b. M. b. Khaldun al-Magribi (808), the Malikite;
ihcMuqqaddantah, vol. i, pp. 363-77 (Ibn Khaldun). Bulaq, 1284. Con-
tains a valuable bibliographical and critical review of the literature of
the religious and other sciences. (5) Miftdb al-Sa'ddah wa Mifbdb
al-Siyddah, by a. '1-Khayr A. b. Mu§lih-al-din Mustafa Tashkeuprizadeh
(968), the Hanifite. It describes the subject-matters of 150 disciplines
indicating the well-known books pertaining to each. Drawn upon by
H. Khal. (6) Risdlah fi Tabaqdt al-Masd'il, by 'AH Tchelebi Qinali-
zadeh (979) (also b. al-Hinnali). It explains main types of Hanifite
legal literature. Probably does not contain very much more than Ibn
'Abidin and H. Khal. Cf. Ahlwardt, no. 4868. (7) Kashf al-Zunun
'an Asdmi al-Kutub wa 'l-Funiin (H. Khal.), by Mustafa b. 'Al. Katib
Tchelebi Haji Khali f ah (1068). Ed. with Latin translation by G.
Flugel, Leipzig, 1835-58. Excepting Malikite works, it gives a nearly
exhaustive list of Arabic (also Turkish and Persian) books alphabeti-
cally arranged according to titles, with a long introduction on science,
its definition, purpose, division, etc., and with learned reviews of the

164

BIBLIOGRAPHY

different sciences and their literatures in their proper places. (For inst.,
'Urn fiqh under fiqh, 'Urn usul-al-fiqh under usul-al-fiqh, etc.) Profuse
in giving dates of death and bibliographical information. In connec-
tion with basic works are -given the commentaries, abridgments, versifi-
cations, etc. (8) D'Ohsson, M. de M., Tableau general de I'empire
ottoman, Paris, 1787. Pp. 17, 290 give a short list of fatwa collections
and a description of the seminaries (madrasah) in Turkey and the
text-books used, respectively. (9) Shark al-Manziimah al-Musammdt
bi 'Uqud Rasm al-Mufti, by M. Amln Efendi, known as Ibn 'Abidin
(1250), the Hanifite. Printed in a collection of his essays entitled
Majmuah Rasd'il Ibn 'Abidin. Constantinople, 1325. Pp. 10-52. Gives
valuable information about the original 'Hanifite sources and the mean-
ings of the terms used by Hanifite doctors in connection with the trans-
mission of early opinions. (10) Vincent, M. B., Etudes sur la loi mu-
sulmane. Legislation criminelle. Paris, 1842. Gives historical, bib-
liographical information on early important Malikite works of law
(pp. 31-62). (11) Harington, J. H., Esq. (1828), "Remarks upon the
Authorities of Mosulman Law," in his An Elementary Analysis of the
Laws and Regulations (of Bengal), etc., vol. i, Calcutta, 1805-17.
Bibliography of Hanifite works with especial reference to India. (12)
Morley, W. H. (1860), An Analytical Digest (of cases decided in the
Supreme Courts of India). New series, vol. i, introd. London, 1852.
(13) Sircar, -Shama Qi., The Muhammadan Law, Tagore Law Lec-
tures, 1873 and 1874. Calcutta, 1873 and 1875. Bibliogr. of Hanifite (pp.
18-63) and of Shi'ite works (pp. 167-74). (14) Kremer, A. von, Cultur-
geschichte des Orients unter den Chalifen. Vienna, 1875-7. Chapters on
law, pp. 470-547, and science and literature, vol. ii, 396-484. Also goes
into origin of fiqh. (15) Chauvin, Victor, Bibliographic des outrages
arabes ou relatifs aux Arabes publics dans I' Europe chretienne de 1810-
8$. Vols. i, ii, iii. Liege, 1892, 1897, 1898. Topical treatment. Very schol-
arly. Quotes tables of contents. (16) Ahlwardt, W., Verzeichniss der
arab. Hss. der kdnigl. Bibliothek zu Berlin. Berlin, 1887. Topical treat-
ment. Gives list of the works or commentaries bearing on a subject.
Valuable work. (17) Hurgronje, C. Snouck, Mekka, Haag, 1889. Vol.
ii, pp. 249 et seq. On methods of instruction in seminaries in Mecca and
a few of the works used, with a critical evaluation of same. (18) Gold-
ziher, I., Muham. (M.) Studien. Halle, 1889-90. Contains a chapter
(vol. ii) on hadith literature. The book is a masterly study of the
entire subject of hadtth. (19) Rieu, Ch., Supplement to the Cat. of the
Arab. Mss. in the Br. Museum. London, 1894. Topical treatment.
Rich in bibliographical information. (20) Hughes, T. B., A Dictionary
of Islam, 2d ed., London, 1896. Gives bibliography of Hanifite and
Shi'ite works under Law and Tradition. (21) K. Iktifa' al-Qunii bima
Huwa Matbu min A jail al-Ta'dllf al-Arabiyyah fi 'l-Matdbi' al-Shar-

BIBLIOGRAPHY ^5

qiyyah wa 'l-Garbiyyah, by Edward Findik, Cairo, 1896. A list of the
important Arabic works published in Europe and the Orient. Its
bibliographical notices often based on Haji Khali f ah. They are at
times original. (22) Sawas, Pacha, Etude sur la theorie du droit
H'.usuhnan. 2nd ed., Paris, 1902. Pp. 150-60. Bibliography of Hani-
iite works, with special reference to those used in instruction in semi-
naries in Turkey. (28) Sachau, Ed., Muham. Recht nach Shafit.
l.chrc (S.), Stuttgart and Berlin, 1897. Vol. xvii of Lehrbiicher des
San. fiir orient. Sprachen zu Berlin. A bibliography of Shafiite books.
For a long, constructive criticism of same by C. Snouck Hurgronje (H.
on S.), see Zeitschrift der deutschen morgenldndischen Gesellschaft
/). M. G.), Leipzig, vol. 53, esp. pp. 143-150. (24) Brockelmann,
Carl, (icschichte der arab. Litteratur. Weimar, 1898-1002. A list of
extant Arabic works with accounts of existing Mss., years of publica-
tion, short biographical notices, dates of birth and death, and occa-
sional bibliographical information. Commentaries, abridgments, etc.,
are given in connection with the basic works to which they relate.
Arrangement chronological within general topics. An indispensable
manual. (2.">) MacDonald, D. B., Development of Muslim Theology,
Jurisprudence and Constit. Theory. New York, 1903. Contains a good
annotated bibliography on works (esp. European) on Islam in general.
(2(>) Institutes of Mussulman Law, by A. F. M. Abdur Rahman. Cal-
cutta, 1907. Annotated bibliography on Hanifite works (pp. Iv-lxi),
chiefly based on Harington and Morley. (27) Heidborn, A., Manuel
de droit public et admin, de I' empire ottoman. Vienna, Leipzig, 1908.
Pp. 275 et seq. A complete list of books used at present in seminaries
in Turkey. (28) Nores, Ed., Essai de codification du droit musulman
algcrien (statut personel). Algiers, 1009. Bibliography on Malikite law
works. Pp. ix-xxv. (29) Juynboll, Th. W., Handbuch des islam. Ge-
sctzcs nach der Lehre der schafiit. Schule nebst einer allgem. Einleitung.
Leiden-Leipzig, 1910. A compact and useful work with many refer-
ences on each topic. Also contains a list of the chief European and
orthodox Arabic works on Moh. law. (30) The Encyclopedia of Islam.
Ed. by M. Th. Houtsma, etc. Leyden, 1913. Covers geography, eth-
nography and biography of Mohammedan peoples. Published as far as
the letter H. (81) Carusi, Prof. Ev., Sui rapporti fra diritto romano
c diritto musulmano. Rome, 1913. Extract from Atti d. Soc. Ital. per
il Progresso d. Science, VII, Riunione-Siena, settembre, 1913. Makes
critical remarks on European works on Muh. law.

LEXICOLOGICAL

NAMES OF PERSONS— (1) Al-Mushtabih fi Asmd' al-Rijdl—by
Shams-al-din a. 'Al. M. b. A. al-Dhahabi (748), the Shafiite. Gives spell-
ing of ambiguous real names, ethnic names, surnames (kunyah) and

166 BIBLIOGRAPHY

honorary names (laqab). (2) Lubb al-Lubdb ft Tahrir al-Ansdb, by
Jalal-al-din 'Ar. b. a. Bakr al-Suyu|i (911), the Shafiite. Leyden, 1851.
Gives spelling of nisbahs, i. e. names of tribal, family, or local relation.
Condensed from the Lubdb of b. al-Athlr., with additions.

NAMES OF PLACES— (1) K. Mu'jam Ma Ustu'jimo, by a. 'Ubayd
'Al. b. 'Abd-al-'aziz al-Bakri (487). Ed. F. Wiistenfeld, Gottingen,
1876. According to R. Dozy, as quoted by Wiistenfeld, it is unique in
completeness and accuracy and beyond comparison. The work gives the
spelling of names of towns, villages, countries, stations, mountains,
rivers, wells, etc., occurring in hadlths, histories, and poems, with situa-
tions indicated. Quotes respective verses. (2) Mu'jam Mard_sid_ al-
Ittild' 'a/a Asina al-Amkinah wa 'l-Biqdf, by Yaqut b. 'AL al-Rumi
(626). Ed. T. G. J. Juynboll, Leyden, 1850-64. Condensed from the
Mu'jam al-Bulddn of the same author. (3) General dictionaries such
as the al-Qdmus al-Muhit of M. b. Ya'qub al-Firuzabadi (817), the
Shafiite, and esp. its commentary, the Tdj al-'Arus, by al-Sayyid M.
Murtada al-Zabidi (1206), the Hanifite. Both are alphabetical with re-
spect to 3d, then ist and 2d letters of the root. (4) Bibl. Geograph-
orum Arabicorum. Ed. M. J. De Goeje, Lugduni Batavorum, 1870-94.
Contains indexes of places and peoples. (5) The Onomasticon Ara-
bicum to be shortly brought out in connection with the Annali dell'
Islam by L. Caetani. It is to contain over 200,000 items, and may f airlv
be expected to dispense with all other works of its kind.

COMMON NAMES— (I) Koran: Mufraddt Alfd? al-QurjOn, by a.
'1-Qasim al-<Hu. b. M. al-Ragib al-Isfahani (502). Cairo. Alphabeti-
cally arranged and very serviceable. Quotes verses and traditions.

(II) Tradition: Al-Nihdygh fi Garib al-Hadith wa 'l-Athar, by
Majd-al-dln a. '1-Sa'adat al-Mubarak b. M. al-Jazari ibn al-Athir (606).
Cairo, 1311. Two vols. Based on the standard works of a. 'Ubayd
al-Qasim al-Harawi (223), 'Al. b. Muslim b. Qutaybah (276), a. Ubayd
A. b. M. al-Harawi (401) on both the Koran and the hadith, and M. b.
a. Bakr al-Isfahani (581), with additions. Alphabetical with respect to
roots. Quotes the entire hadith where the word is found. Very easy
of reference and full of valuable information. A condensation with
additions is the Al-Durr al-Nathtr, by Jalal-al-din al-Suyuti (911).
Printed on the margin of the Nihdyah.

(III) Law— (1) Garib al-Fiqh, by a. Man§ur M. b. A. al-Azhari (370).
Explains words used by Shafiite jurists. It is "a standard" ('umdah}
in this respect. (H. Khal.) (2) Mafatih al-'Ulum, by a. 'Al. M. b. A.
al-Khuwarizmi al-Katib (ca. 365-87). Ed. G. van Vlotten, Leyden, 1895.
Gives in brief explanations of technical terms used in sciences and arts
(such as fiqh, dogmatics, syntax, tax and other administration [kitd-

BIBLIOGRAPHY

bah], music, and chemistry) in separate chapters analytically arranged.
Very valuable. (8) ^/-Mugrib fi Tartlb ol-Mu'rib, by a. '1-Fath Na§ir
b. 'Abd-al-sayyid al-Mutarrizi (610), the Hanifite. Haydarabad, 1328.
A condensed alphabetical arrangement of his own al-Mu'rib. Explains
words and locutions used in Hanifite works on fiqh, such as the Muntaqa
of al^Hakim al-Shahid, the Tafsir of al-Quduri, the Mukhtas.ar of
al-Karkhi, etc., in a rather non-technical fashion. (4) The second part
(qism) of the work: Tah-dhib al-Asmd' wa 'l-Lugdt, by Yahya al-Na-
wawi (676) . Cf. supra, p. 160. (6) /J/-Misbah al-Munir fi Garib al-Sharh
al-Kabir, by A. b. M. al-Muqri al-Fayyumi (770). the Shafiite. Cairo,
1305. Explains the words used in al-iRafi'i's commentary on the IVajis,
with additions. Gives many locutions, but in spite of its name is more
like a general than a technical dictionary. (6) Al-Ta'rifdt, by 'Ali b. M.
al-Jurjani, al-Sayyid al-Sharif (816), the Hanifite. Cairo, 1321 (with an
appendix on Sufi terms). A well-known work giving brief definitions
of technical terms only, such as are found in books on law, fjadith,
syntax, etc. (7) Maqdlid ol-'Ultm fi 'l-Hudud wa 'l-Rusum, by the
same author. Gives technical terms of 21 sciences. (8) Ishdrdt ila ma
Waqa'a ft Kutub al-Fiqh min al-Asma wa 'l-Amdkin wa 'l-Lugdt, by a.
Tahir M. b. Ya'qub al-Flruzabadi (817). Explains proper names and
terms of fiqh books. WTAl-Hiddyah al-Kdfiyah, by M. b. al-Qasim
al-Rashsha* (894), a commentary on a work on legal definitions by M. b.
M.b.'Arafah al-Wargami (803) , the Malikite. (10) Ta'rifdt, by a. Yahya
Zakariya' b. M. al-An§ari (926), the Shafiite. Brief definitions of the
technical terms used in dogmatics (usut-al-din) and fiqh. (11) Kulliy-
ydt al-'Ulum, by a. M-Baqa' al-Hu. al-Kaffawi (1094), the Hanifite"
Bulaq, 1281. Arrangement hardly alphabetical as claimed by author.
At times very long, esp. as regards rules of grammar and syntax; at
other times brief and non-technical. (12) Kashshdf Istildhdt al-Funun
(Tech. Diet.) (1158), by M. 'Ali b. 'Ali aj-Tahanawi, the Hanifite. Ed.
A. Sprenger, Bibl. Ind., Calcutta, 1862. Explains technical terms by
long quotations from standard works. Contains an introduction on defi-
nition, subject-matter, etc., of sciences. (13) Ta'rifdt al-Funun wa
Tardjim al-Musannifln wa Mandqibuhum, by M. al-Aqkerm&ni (around
1160). (14) Among general dictionaries the Muhif al-Mubit, by Bulrus
al-Bustani (1883), Bayrut, 1867, is particularly helpful in giving sum-
mary definitions of technical terms. Also the Qajr al-Muhij, an abridg-
ment of the former by the author himself.

KORAN COMMENTARIES

(1) Tafsir al-Qur'dn, by a. Ja'far M. b. Jarir al-Tabari (310), Cairo,
1321. " The entire Mohammedan community is agreed that its like has
not been written " (al-Nawawi, in H. Khal.). " The most excellent and
the greatest of Koran commentaries" (Al-Suyuti, ibid.). It is the basic

j68 BIBLIOGRAPHY

authority. It goes into the motives (wajh) of the opinions and indi-
cates those that deserve preference; also goes into questions of syntax
(i'rdb) and legal deductions (istinbdt). Contains an analytical table of
contents. Index by H. Haussleiter, entitled Register zum Qorankom-
mentar des Tabari (Kairo, 1321), Strassburg, 1912. It gives the page
for each verse. (2) Al-Kash-shdf 'an Haqd'iq al-Tanzil, by a. al-Qasim
Mahmud b. 'Umar al-Zamakhshari (538). Ed. Nassau Lees, etc., Cal-
cutta, 1856. Determines the meanings chiefly from standpoint of syntax
and rhetoric, and is Mu'atazilite in its theology ('aqd'id) (cf. Ibn Khal-
dun). "The author of the Kash-shdf is the sultan of this art (i. e.,
rhetoric), and therefore his book flew to the East and the West"
(al-Suyuti, in H. Khal.). The " best" glosses by Sharaf-al-din al-H. b.
M. al-Tayyibi (743), who refutes from the Sunnite standpoint (H.
Khal.). (3) Mafdtlh al-Gayb, known as al-Tafslr al-Kabir, by Fakhr-
al-din M. b. 'Umar al-Razi (606). An unfinished large work. Author
wrote it to disconcert some of "the jealous persons" who would not
believe a statement of his to the effect that 10,000 propositions could be
derived from the hidden meanings of the opening chapter of the
Koran (H. Khal.). It is full of singular views (Ibn Khallikan, in H.
Khal.). It is full of the views of the philosophers. Some say that
there is in it every thing but a Koran commentary (Itqdn, p. 917).
(4) Anwdr al-Tanzll wa Asrdr al-Ta'wll, by Nasir-al-dir a. Sa'Id 'Al.
b. 'Umar al-Baydawi (685?). Ed. H. O. Fleischer, Leipzig, 1846.
Abridged from the Kashshdf, as regards syntax and rhetoric, from
al-Tafslr al-Kabir as regards Philosophy and Dogmatics, and from
Tafslr al-Rdgib as regards etymology, the mysteries of essences
(haqd'iq) and subtle points. The work is from the Sunnite standpoint
and has enjoyed great favor as a text-book and an object of comment.
(H. Khal.) It is still used in the seminaries (madrasah} in Turkey.
The work distinguishes itself by a summary treatment of all the view-
points. The best commentary on it was written by Muslih-al-din
Mustafa al-Qujawi (951) in 8 vols. (5) Tafslr al-Jaldlayn — begun by
Jalal-al-din M. b. A. al-Mahalli (864), and completed by Jalal-al-din
'Ar. b. a. Bakr al-'Suyuti (911), the 'Shafiites. " Small in size but great
in meaning, for it is the core of the marrow of Koran commentaries."
(H. Khal.) Also still used in Turkey.

SCIENCE OF KORAN INTERPRETATION (7/m al-Tafsir)
Al-Itq&n fi 'Uliim al-Qur'dn, by Jalal-al-din al-Suyuti (911). Bibl.
Ind. Calcutta, 1857. The work is based on the author's own al-Tahbir
(or Takhbir?) fi 'Uliim al-Tafsir (an enlargement of the Mawdqi'
al-'Ulum min Mawdqi' al-Nujilm, by Jalal-al-din al-Bulqini and of a
smaller work by al-Suyiiti's teacher, a. 'Al. Muhyi-al-dln aKKafiji) and
on the al-Burhdn fi 'Uliim al-Qur'dn of Badr-al-din M. b. 'Al. al-Zar-

BIBLIOGRAPHY ^

kashi (794). It was intended as an introduction for the exhaustive
Koran commentary he began writing, the Majma' al-Bahrayn and Mafia'
al-Badrayn, which apparently he did not complete. The Itqdn " is the
most useful of his works" (H. Khal.). It is meant by the author to
serve the same function with respect to the Koran as the books on the
so-called sciences ('ulum) of badlth do with respect to the hadiths. It
is in reality a more or less general treatment under separate topics
(now' or 'i/w) of the material scattered through general and special
commentaries. There are 80 such topics in the Itqdn, e. g., on abro-
gated verses, on verses revealed in peace and war time, on verses of
the mutawdtir type, on Koran commentators, etc.

KORAN CONCORDANCE, Fliigel, G. L., Concordantiae Corani
Arabicae, Leipzig, 1842. Very serviceable.

TRADITION (Hadlth)

(1) .;(/£, by a. 'Al. Malfcb. Anas (179). (a) Recension of

Yahya h. Yuhya al-Masmudi (234) (Muwatta*). Lithogr. Dihli, 1302.
It contains ±1,720 hadiths. (b) Recension of M. b. al-Hasan (189), the
Hanifite, with a long introd. and copious notes by a. al-Hasanat 'Abd-
al-hayy b. M. al-Luknawi. The latter recension is shorter, containing
often Muhammad's own views. (Cf. Goldziher, M. Studien.) There
are about 16 recensions, that of Yahya being considered as the standard
one. The Muwatta is said to be the first compilation of badiths,
though different views have been also held. It is properly speaking a
work of law, the hadiths mentioned in it being invoked in support of
the author's views. It contains many hadiths of the mursal and mun-
rank. Al-Shafi'i is related to have said concerning the Muwaltd\
that after the Koran it is the most reliable book. Later Shafh'tes say
that this statement was made before the writing of the six Sahihs and
is no longer true. Commentary by M. b. 'Abd-al-baqi al-Zarqani (1122).
Cairo, 1280. An esteemed commentary. (2) Musnad al-Imdm Ahmad,
by A. b. M. b. Hanbal (241). This is the most famous collection of the
inusnad type, i. e. a collection where hadiths transmitted, e. g., by the
same Companion are classed together without respect to content. (For
a review of the Cairo edition of this work by I. Goldziher, see Z. D.
M. t/"., vol. 50, pp. 465 et seq.) The work is said to contain about 30,000
hadiths. "It is a worthy work and one of the sources of Islam" (H.
Khal.). The work, as it is, is extremely difficult of reference. (8)
Al-Jdmi' al-Sahih, known as Sahib al-Bukhdri, by a. 'Al. M. b. Ism.
al-Bukhari (256)" Ed. L. Krehl (vols. i-iii), Th. W. Juynboll (vol. iv).
Leyden, 1862-8. This work is of the type called mus.annaf, i. e., a col-
lection of hadiths arranged in chapters according to content. It is the
first of the well-known sixhadith collections considered reliable (fablb)
and canonical. This one, after the Koran, is the most reliable (jo/ii/»)

170

BIBLIOGRAPHY

book of Islam. Al-Bukhari mentions in his work all the chains of re-
porters (turuq) by which hadlths have been transmitted. For this
purpose he visited all the centers where Companions lived. He does
not, however, include a hadlth unless all its reporters are agreed on it.
Many hadlths are repeatedly mentioned (al-Nawawi, in H. Khal., and
Ibn Khaldun). The work is said to contain 9,000 hadlths, 2,800 being
repetitions. According to Ibn Khaldun, the Malikites of his time con-
sidered that no commentary worthy of this work had yet been written
and that the Moslem community owed to the author this debt. H. Khal.
remarks that perhaps this debt has been acquitted by the following
three commentaries written since then: (a) Path al-Bdri, by A. b. 'Ali
b. Hajar al-'Asqalani (852), the Shafiite, with an introduction. Well
known. One of the largest commentaries on the work, in 10 parts,
(b) 'Umdat al-Qdri, by Badr-al-din a. M. Mahtnud b. A. al-'Ayni
(855), the Hanifite. Based largely on the former, with additional
matter. Not so widespread as the former, (c) Irshdd al-Sdri li Shark
Sahih al-Bukhdri, by Shihab-al-din A. b. M. al-Khatib al-Qastallani
(923)> the (Shafiite. Bulaq, 1304-5, in 10 vols., with an introduction on
'Urn hadlth and al-Bukhari. Also based on the Path al-Bdri, (4)
Sunan al-Ddrimi, by 'Al. b. 'Ar. al-Darimi (255). This work has a
long introduction calculated to support the hadith-folk side in the
controversy about the use of personal opinion in law. Then, too, it
contains fewer hadlths and avoids details. Probably these facts ex-
plain why this work has not been included among the six canonical
collections, though it enjoys great esteem. Two other important hadlth
compositions which likewise failed are the Sunans of 'Ali b. 'Umar
al-Daraqutni (385), and A. b. al-Hu. a. Bakr al-Bayhaqi (458), the Shafi-
ites. The works of al-Bayhaqi were much esteemed by the'Shafiites. (5)
Jdrni' al-Sahlh, by a. al-Hu. Muslim b. al^Hajjaj al-Nlsaburi (261), the
Shafiite. The second of the " Six books." This work found especial
favor among the Moslems of the Magrib (West), some of whom went
as far as placing it above the Sahih of al-Bukhari (Ibn Khaldun).
Muslim followed the plan of al-Bukhari, except that his arrangement is
better. He mentions a given hadlth in one place only. Muslim quotes
hadlths from 625 traditionists whose hadlths al-Bukhari would not
quote. His requirements are said to be somewhat less rigorous than
those of al-Bukhari. Commentaries: (a) Al-Mu'allim bi Fawd'id K.
Muslim, by a. 'Al. M. b. 'Ali al-Maziri (536), the Malikite. Treats also
of 'ilm-al-hadlth and fiqh. (b) Tkmdl al-Mu(allim fi Sharh Muslim,
by al-Qadi 'lyad b. Musa al-Yah§abi (544), the Malikite. It is an en-
largement of the former, (c) Al-Minhdj fi Sharh Muslim b. al-Hajjdj,
by Yahya b. Sharaf al-Nawawi (676), the Shafiite, with an introduction
on 'Urn al-hadlth. Contains matter found in the two previous, and
more (Ibn Khaldun). Published on margin of Qastallani. (C) Sunan

BIBLIOGRAPHY !7r

a. Ddwiid, by a. DawQd Su. b. al-Ash'ath al-Sijistani (275), the Shafiite.
This is a hadith collection of the Sunan class. The works of this class
treat the hadiths only in so far as they constitute a rule of conduct
(sunnah). They differ from the J 'ami's, which include hadiths of every
description. The author says that out of 500,000 hadiths he had writ-
ten down, he incorporated in his book 4,008. This is the third of the
" Six Books " passed as canonical, the other three being in order of
esteem the Sunan books of al-Tirmidhi, al-Nasa'i and b. Majah. Ac-
cording to Ibn Khaldun these four are less exacting than the first two,
including also hadiths of a rank below the s.ahi[i and hasan. (7) Jdmi'
al-Saf}ih, also called Sunan al-Tirmidhi, by a. 'Isa M. b. 'Isa al-Tirmidhi
(279), the Shafiite. Goldziher~thinks that the word Jdmi' betteflits
this work. (8) Sunan b. Mdjah, by a. 'Al. M. b. Yazid b. Majah al-Qaz-
wlni (273). Also one of the " Six Books." The following works,
which, written later, superseded the foregoing for purposes of refer-
ence and instruction, are based on the foregoing and consist in re-
arrangement, compilation, comment, and re-hash. (9) Sunan al-Sagir,
called al-Mujtabi, by a. 'Ar. A. b. Shu'ayb al-Nasa'i (303), the Shafiite.
Condensed by the author from his larger work, the Sunan al-Kabir.
(10) Al-Jdmi' bayn al-Sahihayn, by a. 'Al. M. b. a. Na§r al-Humaydi
al-Andalusi (488), a disciple of 'AH b. Hazm, the Zahirite. A noted
work combining the two first Sahihs. (11) Ma$dblh al-Sunnah, by Hu.

b. Mas'ud al-Farra' al-Bagawi (516 or 510), the Shafiite. Contains
4,485 or, in another version, 4,719 hadiths. Omits supports (asdnid)
and groups the hadiths of $ahih rank separately from those of 6<wan
rank, indicating those of inferior rank. This work enjoys great esteem.
An enlargement: Mishkdt al-Mas.dbih (737), by a. 'Al. M. b. 'Al.
al-Khatib al-Tibrizi, the Shafiite. A standard work in India. English
translation by A. N. Matthews, Calcutta, 1809-10. (12) Tajrid al-Sihdh
al-Sittah, by Razin b. Mu'awiyah al-'Abdari (535). Combines all the
Six Books, and foHows al-Bukhari as regards chaptering (abwdb). Does
not comment on the hadiths. (13) Jdmi' al-Us.ul, by Majd-al-dm Mu-
barak b. M. b. al-Athir al-Jazari (606), the Shafiite, with introduction
on 'Urn al-hadith and biographies of the Prophet and his Companions.
Combines the previous work and the Six Books, omitting the supports
save the name of the Companion or the person directly reporting from
the Companion. Comments on difficult (garib) hadiths. Arranged in
chapters alphabetically disposed. .Sources indicated by letters. Abridg-
ments: (a) Tajrid al-Us.ul, by Sharaf-al-din Hibat-allah 'Abd-al-rahlm
b. al-Barizi al-Hamawi (738), the Shafiite. Omits comments and gram-
matical and syntactical remarks, (b) K. Tayslr al-Wu$ul ila Jdmi'
al-Us.tl, by 'Ar. b. 'Ali b^aUDiba' al-Shaybani al-Zabidi (944), the
Shafiite. Cairo, 1330. An elaboration and, according to the author, an
improvement of the abridgment just mentioned. "The best of the

172

BIBLIOGRAPHY

abridgments" (H. Khal.). Much used by students. (14) Mashdriq
al- Anwar al-N abawiyyah min Sihdh al-Akhbdr al-Mustafawiyyah, by
Radi-al-din al-H. b. M. al-Sagani (or Sagani) al-Hindi (650). Con-
tains 2,246 hadiths of the sahih rank. Much commented upon. Al-
Subki is quoted in the Tadrlb (p. 6) as having said: "The final goal
[in the study (*i7m) of hadlth for some people] is the study of the
Mashdriq al-Anwdr; therefore, if they rise as high as the Masdblh of
al-Bagawi, they believe that they have reached the degree of muhad-
diths." (15) Jam' al-Jawdmi', by Jalal-al-din 'Ar. b. a. Bakr al-Suyuti
(911). Combines the Six Books, several Musnads, and others, and is
intended by the author to exhaust the entire field of hadiths. The
author abridged it in his al-Jdmi' al-Sagir, which he supplemented in
the Zawd'id. A compilation and arrangement of all the three is the
Kanz al-'Ummdl fi Sunan al-Aqwdl wa 'I Af'dl, by 'Ali b. Husam-al-din,
al-Muttaqi (975), the Indian. Haydarabad, 1312-14. Eight parts. Ac-
cording to the numbering on the margin, it contains 46,681 hadiths,
cast in books (Kitdb) (in the conventional manner of the fiqh books),
alphabetically arranged. Probably the easiest of reference. A conden-
sation of it by its author is the Muntakhab Kanz al-'Ummdl, etc.
Printed on the margin of the Musnad of Ahmad. About one-third
reduced. A useful feature of both works is the separate treatment of
the hadiths pertaining to the Prophetic conduct (afdl).

SCIENCE OF TRADITION
('Ilm or 'Ulum or Usiil or Mustalah al-Hadith)
(1) (Ma'rifat} 'Ulum al-Hadlth, also called Funtin al-Hadlth and
Usiil al-Hadlth, by a. 'Amr 'Uthman b. 'Ar. b. al-Salah (643), the
Shafiite. The first work on the subject which achieved a classical
fame. Contains 65 topics (naw'~). Commentaries: (a) Al-Taqyld wa
'l-Iddh, etc., by 'Abd-al-rahim b. al-Hu. al-lraqi (806) ; (b) by ^Izz-
al-din M. b. Jama'ah (819) ; etc. Abridgments: by Badr-al-din M.
b. Jama'ah (733), Ism. b. 'Umar b. Kathlr (774), and others, the most
famous of them being the next work. (2) Al-Taqrlb wa 'l-T&yslr
H Ma'rifat Sunan al-Bashlr al-Nadhlr, by Yahya b. Sharaf al-Nawawi
(676). It is a second abridgment of a first abridgment of that work
by the same author, entitled K. al-Irshdd (li-Ma'rifat Hadlth Khayr
al-'Ibdd). The Taqrlb was translated into French by M. Margais and
was published in the 7. Asiatique, 1900-1901, 9eme serie, vols. 16, 17, 18.
The preface gives useful information on bibliography, etc. Commen-
taries: (a) By 'Abd-al-rahim al-'Iraqi (806) ; (b) M. b. 'Ar. al-Sakhawi
(902) ; (c) Tadrib al-Rdwi fi Sharh Taqrlb al-Nawawi, by Jalal-al-din
'Ar. b. a. Bakr al-Suyuti (on). Cairo, 1307. The work is also in-
tended as a commentary to the works of b. al-Salah and others. It is
full of information. (3) The Manzumah of A. b. Farah al-Ishbili (699).

BIBLIOGRAPHY ^3

Also called Gar dm Sahih, these being the words with which the work
begins. It is a love-poem in 20 verses, containing about 40 technical
terms. It begins thus: "My longing is true (sahih) and the desire
for you is overcoming (wu'^i/)," etc., the words sahih and mu'dil being
also technical terms. A commentary of this is the Zawdl al-Tarah
fi Shark Mansumat b. Farah, by 'Izz-al-din a. 'Al. M. b. Jama'ah al-
Kinani (816). Ed. by F. Risch as a Leipzig dissertation with notes.
Leyden, 1885. (4) Al-Khuldsah fi Ma'rifat (or U&l) al-Hadith, by
Sharaf-al-din Hu. b. M. al-Tayyibi (743). An "able compendium"
(H. Khal.). Condensed from the works of b. al-Salah, al-Nawawi,
al-Qadi b. Jama'ah, with additions from the Jdmi" al-Us.ul, etc. (5)
Al-Alfiyyah (or al-Tab^irah wa 'l-Tadhkirah), by Zayn-al-din 'Abd-
al-rahim b. al-Hu. al-'Iraqi (806), the Shafiite. It is a condensation
of the work of b. al-Salah in rajas verse. A commentary on it is the
K. Path al-Bdqi li Shark Alfiyyah al-' Iraqi, by a. Yahya Zakariya' al-
Ansari (926), the Shafiite. (6) Nukhbat al-Fikar fi I$tildh AM al-Athar,
by A. b. 'Ali b. Hajar (852), with a commentary by the same. Cairo,
1323. Margais finds b. Hajar's treatment more scientific. A much
annotated work. (7) Bayquniyyah, by Tahir b. M. al-Bayquni (ca.
1080). A poem in 34 rajas verses containing about 35 terms. Used by
students in the Azhar and the Algerian seminaries. There is a com-
mentary on it by M. b. 'Abd-al-baqi b. Yu. al-Zarqani (1122). (8) The
introductions of the commentaries of al-Qastallani and al-Nawawi on
the Sahihs of al-Bukhari and Muslim, respectively, mentioned before,
contain useful matter bearing on this subject.

THE PRINCIPLES OF LAW (Us&l-al-fiqh)

(1) Risalah, by M. b. Idris al-Shafrt (204). Recension of al-Rabl'
b. Su. al-Muradi. BQlaq, 1321. Said to be the first work on usul-
al-fiqh. Cf,, however, the Fihrist (p. 204) where M. b. al-H. is
said to have written on "U$ill-al-fiqh," "Ijtihdd al-Ra'y" and "Istihsdti."
The Risdlah represents the transition stage in the differentiation of this
science from fiqh. In many parts it reads like a Shafiite work on fiqh.
A most valuable source. Commented upon, among others, by M. al-
Qaffal al-Shashi (507).

(*) Taqii'im al-AdiUah, by a. Zayd 'Al. b. 'Umar al-Dabusi (430),
the Hanifitel " Best of works written by the earliest writers" (Ibn
Khaldun). Al-Dabusi completed the elaboration of the laws of qiyds
(ibid.). Commented upon by 'Ali al-Pazdawi (482) and others.

(8) Al-Mu'tamad, by a. al-Hu. M. b. 'Ali al-Basri (436), the Mu'ta-
zilite. A large work used as basis by later writers. The Mu'tamad is
a commentary on the 'Ahd by 'Abd-al-jabbar b. A. al-Asadabadi Qadi
al-Qudat (415), chief of the Mu'tazilites, but Shafiite as to fiqh. (Ibn
Khali., Subki, vol. iii, p. 220.)

174

BIBLIOGRAPHY

(4) Al-Burhdn, by a. al-Ma'ali 'Abd-al-malik b. 'Al. al-Juwayni
Imam al-'Haramayn (478), the Shafiite. Shows independence of view.
"A pride of the Shafiites" (Subki). Style very involved. The work,
though by a Shafiite, was commented upon by Malikites such as 'Al.
al-Maziri and a. al-^H. al-Anbari. They attack the author where he is
at variance, e. g., with a. al-H. al-Ash'ari. They, however, depend on
his works exclusively as regards dogmatics. (iSubki, vol. iii, p. 264.)

(5) Al-Waraqdt, by the same Imam al-Haramayn. It is a small com-
pendium intended for beginners. This work found great favor among
the Shafiites and was commented upon by many (also by Hanifites),
among others by Jalal-al-din M. b. A. al-Mahalli (864), with glosses
entitled Qurrat al-Ayn (953) by M. b. M. al-Khattdb, the Malikite.

(6) Kanz al-lVu$ul ila Ma'rifat al-Ujul or U$ul al-Pasdawi, by
Fakhr-al-islam 'Ali b. M. al-Pazdawi (482), the Hanifite. "Best of
works written by later writers and exhaustive" (Ibn Khaldun). This
is a work of classic reputation among Hanifites. It gives the arguments
at length. Style is at parts difficult. Commentaries: (a) Kashf al-Asrdr,
by 'Abd-al-'aziz b. A. al-Bukhari (730). Constantinople, 1307. "The
largest, most profitable and clearest commentary" (H. Khal.). This
commentary with its text is indispensable for critical research into his-
tory of usul-al-fiqh. Later Hanifite works are chiefly based on these
two. (b) Al-Kdfi, by Husam-al-dm al-Hu. b. 'Ali al-Signaqi (7io).
(c) Al-Taqrir, by Akmal-al-din M. b. Mahmud al-Mi§ri al-Babarti
(786), the Hanifite.

(7) K. al-Usul, by Shams-al-a'immah a. Bakr M. b. A. al-Sarakhsi
(483). Must be a valuable source. The K. al-Istihsdn, by the same, is
printed in his Mabsut, vol. x, pp. 145-85. After some valuable general
remarks on nature of istifasdn, the author argues at length for its ap-
plication in practical cases, chiefly in connection with modesty.

(8) Al-Mustasfa, by a. Hamid M. b. M. al-Gazzali (505), the Sha-
fiite. Bulaq, 1322. A valuable work used as basis for later compila-
tions. Original in arrangement. It goes into the arguments. Accord-
ing to Ibn Khaldun, the Burhdn and the Mustafa, on the one hand, and
the 'Ahd and Mu'tamad, on the other, are the four best basic works on
usiil-al-fiqh written from a dogmatic (mutakallim) standpoint, namely,
in a purely speculative way without reference to the applications of
the principles in the field of fiqh.

(9) The works of M. b. 'Al. b. Tnmart al-Mahdi (524), the founder
of the Almohades dynasty (dawlat al-muwahhidin) , with biographical
extracts on b. Tumart and a critical introduction by I. Goldziher.
Algiers, 1903. These works chiefly bear on questions of usul-al-fiqh and
dogma, and represent a reaction to the speculative and secular tenden-

BIBLIOGRAPHY

175

cies of the four orthodox schools. The point of view is akin to that
of the Zahirites.

(10) Al-Mabsul, by Fakhr-al-<lin M. b. 'Umar al-Razi b. al-Khajib
(606), the .Shafiite. A condensation of the four works mentioned (Ibn
Khaldun), especially the Musta$fa and the Mu'tamad, which, according
to al-Isnawi (Minhdj, p. 4), he transfers bodily by pages, apparently
because he "used to commit them to memory." Unlike the Ahkdm,
the Mahful does not indulge in argumentation (Ibn Khaldun; cf. H.
Khal.). Abridgments: (a) Al-Tahtfl, by Siraj-al-din a. al-Thana'
Mahmud b. a. Bakr al-Urmawi~(682). the Shafiite. The author abridged
the Tabfil from the Mabs&l " in order to supply " the great demand for
abridgments. Enjoyed widespread use. (b) Al-Hds'il mm al-Maksul,
by al-Qadj Taj-al-dm M. b. Hu. al-Urmawi. An abridgment of the
Mah$ul (by about one-tenth) as to words rather than meaning, as the
author claims, (c) Minna j al-Wu$ul ila 7/m al-U$ul, by 'Al. b. 'Umar
al-Baydawi (685?), based on the Hdjil. According to Jamal-al-din
b. H. al-Isnawi^ (772), the Shafiite, who wrote a commentary on it, the
Nihdyat al-Sul (printed with the Minhdj on the margin of the Taqrlr),
most of his contemporaries depended exclusively on the Minhdj on
account of its small size and attractive style. (This is the Minhdj re-
ferred to in Part I of this dissertation. The Minhdj referred to in
Part II is on fiqh by al-Nawawi. Cf. infra, p. 188.) (d) Tanqih al-Fuful
fi 'l-Usul, by Shihab-al-din A. b. Idris al-Qarafi (684), the Malikite.
Based on the Mahjul and the Ifddah of al-Qadi 'Abd-al-wahhab, the
Malikite. Favored by beginners and much commented upon.

(11) Al-Ahkdm, by a. al-H. 'AH b. a. 'Ali Sayf-al-din al-Amidi (631),
the Shafiite. A condensation of the four basic works mentioned. The
author indulges in argumentation (tahqlq) and illustrations from the
applications (tafri) (Ibn Khaldun). (a) An abridgment of the Ahkdm
is the Muntaha al-Sul wa 'l-Amal fi 'Ilmay al-U$ul wa 'l-Jadal, by
Jamal-al-din a. 'Amr 'Uthman b. 'Umar, b._al-Iiajib (646), the Mali-
kite, (b) Mukhta$ar al-Muntaha or Mukhtasar b. al-Hdjib, by same.
Abridged from the former. This second abridgment enjoyed great popu-
larity and was annotated by Malikites as well as Shafiites. Com-
mentary by 'Ad.ud-al-dm 'Ar. b. A. al-Iji (756), the Malikite. Con-
stantinople, 1310. Text begins by "Qdl" commentary by "Aqulu." Con-
sidered to be one of the best.

(12) Al-Muntakhab fi Uful-al-Madh-hab, known as al-Muntakhab
al-Husdmi, by Husam-al-din M. b. M. al-Akhsikati (644). A text free
of superfluous matter and well arranged with its divisions (fu$ul) in-
dicated, and containing nice points ; therefore very much sought after.
Commentary: al-Tahqiq, by 'Abd-al-'aziz b. A. al-Bukhari (730), writ-

176 BIBLIOGRAPHY

ten after the completion of his commentary on al-Pazdawi's work on
usul-al-fiqh.

(13) Badl' al-Nisdm, by Muzaffar-al-din A. b. 'AH b. al-Sa'ati (694),
the Hanifite. An " elegant compendium " condensing the works of
al-Amidi and al-Pazdawi (H. Khal.). Ibn Khaldun says that the lead-
ing doctors of his time currently used it for reading and that many
commentaries were written on it.

Mandr al-Anwdr, by a. '1-Barakat 'Al. b. A. Hafiz-al-dln al-Nasan
(710, 720), the Hanifite. An esteemed compendium, the most used of
the author's works. Numerous commentaries were written on it. The
most widely known of these is the Shark al-Mandr by 'Abd-al-latif b.
'Abd-al-'azlz b. Firishtah b. al-Malak (around 830). Glosses thereon
by Mustafa b. M. Azmizadeh (ca. 1040). An abridgment of it is the
Mukhtasar al-Mandr, by b. Hablb al-Halabi (808). (See infra, no. 21.)

(15) Al-Tawdih fi Hall Gawdmid al-Tanqih, a commentary, by
'Ubayd-allah b. Mas'ud b. Taj-al-shan'ah b. Sadr-al-shari'ah al-Awwal
al-Mahbubi (747), the Hanifite, on his own compendium entitled
Tanqih al-Usul. An elegant text of classical fame. It is based pri-
marily on the work of b. al-Hajib, the Mah$ul, and especially the Usul
of al-Pazdawi. It is a schematic arrangement of those works ably
carried out. The author claims priority for his arrangement. The best
of its commentaries is the al-Talwih fi Kashf Haqd'iq al-Tanqih by
Sa'd-al-dm Mas'ud b. 'Umar al-Taftazani (792), the Shafiite. Kazan,
1301.

(16) Jam' al-Jawdmi', by Taj-al-din fAbd-al-wahhab b. al-Subki
(771), the Shafiite. A very comprehensive compendium of great repu-
tation " collected from the flowers of 100 works," containing the cream
of the author's commentaries on the Minhdj and the Mukhtasar of b.
al-Hajib. A thorough-going commentary by Jalal-al-din al-Mahalli
(864). Glosses by 'Ar. al-Bannani al-Magribi (1198) and notes by 'Ar.
al-Sharblni (2Oth cent.). Cairo, 1309. One of the text-books used in
the Azhar.

(17) Al-Tahrir, by M. b. 'Abd-al-wahid b. al-Humam (or Hammam
or Humam-al-din) al-Slwasi (861), the Hanifite. Treats both Hani-
fite and Shafiite views with arguments. Its style is involved. Com-
mentary: ^/-Taqrir wa 'l-Tahbir, by his student M. b. M. b^Amir
al-Hajj al-Halabi (879). Bulaq, 1316-17. Abridgment: Lubb al Usul,
by Zayn al-'Abidin b. Nujaym al-Misri, who rearranged it in the Hani-
fite order.

(18) Mirqdt al-Wusiil fi 'Ilm al-Usul, by M. b. Faramurz Munla
Khusrew (885), the Hanifite. Commentary: Mir' at al-Usul by the
author himself. An elegant commentary containing the early views

BIBLIOGRAPHY

with original additions ; the names of 14 works on ujul-al-fiqh are
given in the introduction (H. Khal.). Both works are still used in
the seminaries in Turkey. Glosses by Mawla Hafid Efendi (1098)
and notes by Su. al-Izmiri (1102). Bulaq, 1262; Stamboul, 1304.

(19) Majdnii' al-Haqaiq, by a. Sa'Id M. al-Khadimi (after 1200),
with his own commentary on it, the Mandfi' al-Daqd'iq. One of the
works on uful-al-fiqh used in seminaries in Turkey. "Unquestionably
the most methodical and complete of text-books (classiques)" (Savvas).

(20) K. Irshdd al-Fukhul, by M. b. 'Ali b. M. al-Shawkani (1255),
Cairo, 1909. A modern topical summary exposition of the views held
by doctors of different schools, with arguments. The author indicates
the views that deserve preference, showing some independence of
opinion.

(•21) Majmu* Mutftn Ufuliyyah. Damascus, al-Hashimiyyah (ca.
1324). A collection of the following four compendiums : (a) Mukhta$ar
al-Mandr (see supra, no. 14), by Zayn-al-dln a. al-'Izz Tahir b. H.
b. Habib al-Halabi (808), the Hanifite, pp. 3-26; (b) Waraqdt (see
supra, no. 5), pp. 27-39. (c) Tanqlh al-Fu$ul (see supra, no. 10), pp.
40-79. (d) Qawd'id aI-Us.ul wa Ma'dqid al-Fusiil, by Safi-al-dln al-
Bagdadi (739), the Hanbalite, pp. 80-154.

THE APPLICATIONS (F«r«') OF LAW (Fiqh, Fatdwa)
I. HANIFITE

(1) K. al-Khardj, by Ya'qub b. Ibr. a. Yusuf (182) (or Kitab al-
Kharaj). Bulaq. 1303. It is a valuable treatise on financial and polit-
ical questions addressed to the calif Harun-al-rashld.

(2) Kutub Zahir-al-riwayah, or Zdhir-al-madh-hab, or al-Uful. They
are the source-books of the Hanifite school and were written by M. b.
al-H. al-Shaybani (187). According to b. al-Humam, unless M. indi-
cates the contrary, the views stated in these books are the views of a.
Hanifah and a. Yu., as well as his own (Ibn 'Abidln, p. 19). They are
the following: (a) Al-Mabsut, also called al-A$l. The recension of
a. Su. al-Juzjani is considered to be the best. Apparently this work was
dictated by a. Yu. and compiled by M., with additions. This view is
confirmed by al-Sarakhsi (Mabsilt, part xvi, p. 129), who says: "The
work was composed (a$l al-tasnif) by a. Yu. and put together (ta'lif)
by M., and therefore it was considered as a composition (tasnif) of
M." The different parts of the Mabsiit, known as " Book of so-and-so,"
were composed separately, and the name Mabsiit (extended) was
given them when they were combined. When, therefore, the doctors
say, " M. said in the book of so-and-so," they only mean one of those

i78

BIBLIOGRAPHY

" books." The style of the Mabsut is said to be verbose with repeti-
tions. Many commentaries were written on the Mabsut, among others
by Shams-al-a'immah 'Abd-al-'azlz b. A. al-Halwani (or Halwa'i)
(448) and Shaykh-al-islam a. Bakr Khwaharzadah ^482). The latter
is known as al-Mabsftt al-Bakri (or al-Kabir?) (Ibn 'Abidln). (b)
Al-Jami* al-Sagir. (Printed on the margin of Yusuf.) Is said to con-
tain 1,532 propositions. A greatly esteemed work. Judges and muftis
were required to learn it by heart as a condition of appointment. It
indicates the authorities. Its arrangement and chaptering were made
later. According to the Bahr as quoted by Ibn 'Abidin (p. 19), every
book of M. bearing the title al-Sagir has had the approval of a. Yusuf,
and, on the contrary, books bearing the title al-Kabir, such as
al-Jdmi' al-Kabir, or al-Musdra'ah al-Kabir were never submitted to

a. Yu. (For more details, see Ibn 'Abidln and H. Khal.) The most
well-known of the many commentaries on it are (i) by Fakhr-al-Islam
al-Pazdawi (482) ; (ii) Fakhr-al-din al-H. b. JMansur al-Uzjandi
Qadikhan (592). When the doctors say, "Qadikhan said so and so in the
al-Jdmi' al-Sagir" they mean the commentary in question (Ibn 'Abidin,
p. 17). These commentaries are mixed with the text, (c) Al-Jdmi'
al-Kabir, According to H. Khal., it contains principles (muttin al-dird-
ydt) and niceties in legal deduction (latd'if al-fiqh). Many commentaries.
Also versifications. Two supplements were written to this work by M.

b. al-H., the Al-Ziydddt and the Ziyddat al-Ziydddt. These, too, were
much commented upon, (d) Al-Siyar al-Sagir wa 'l-Kabir. The last
of M.'s works. Written after his departure from 'Iraq. The author,
owing to his dispute with a. Yusuf, in quoting him does not mention
his name, but says: "A trustworthy person (thiqah) informed us" (H.
Khal.). The Siyars treat the subject of Jihdd. Many commentaries
were written.

(3) K. al-Hiyal al-Shar'iyyah, by a. Bakr A. b. 'Umar al-Kha§saf
(261), Cairo, 1316 (b. Tumart, p. 32). The most well-known of the
works written on lawful tricks. Al-Khassaf also wrote a K. al-Khardj
for the calif al-Muhtadi ; the best known of the works on the duties
and functions of the judges, the K. Adab al-Qdd.i, and a standard
work on pious foundations, the K. Ahkdm al-Waqf.

(4) Al-Mukhtasar H 'l-Fiqh, by a. Ja'far A. b. M. al-Tahawi (321).
In two sizes. Follows the arrangement of the Mukhtasars of al-Mu-
zani. Many commentaries were written on it.

(5) Al-Kdfi n 'l-Fiqh, by M. b. M. al-Marwazi al-Hakim al-Shahid
(334). This work combines the works of M. b. al-H. already mentioned,
and is an authority for determining the views of a. Hanlfah and his two
disciples. A famous commentary on it is the Mabsut (vol. ii) by

BIBLIOGRAPHY

179

Shams-al-a'immah_a. Bakr M. b. a. Sahl al-Sarakhsi^ (483), Cairo, 1323,
in 30 parts. There are many Mabsuts, but when the word occurs with-
out any qualification this work is meant. The commentary is mixed
with the text. The work was dictated by the author in prison. He
says in the preface that, seeing that many of his contemporaries en-
gaged in controversy or subtle dialectics, or subordinated legal (fiqh)
considerations to philosophical ones, he attempts to base the legal
principles on legal considerations pure and simple. The arguments
used by later doctors almost always are found in the Mabjut.

(6) Al-Muntaqa, also by al-Marwazi. It has disappeared in later
times. (H. Khal.) The author is to have culled his work from about
300 sources, such as dictations, (Anidli) and works of the Nawddir
class. Apparently the Muntaqa is designed to make use of the legal
determinations of the Nawddir class which were not included in the
Kdfi. The secret of its disappearance may lie in this fact.

(7) Al-Mukhta$ar fi 'l-Fiqh, by a. '1-H. 'Ubayd-allah b. al-H. al-
Karkhi (340).

(8) Mukhtasar fl/-Quduri, by a. '1-Hu. A. b. M. al-Quduri, al-Bagdadi
(428). Kazan, 1896. A compendium of very great reputation. It is
referred to as " The Book." It has been said that the person who
commits it to memory becomes secure from poverty, and that the per-
son who studies it under a pious teacher and invokes upon him on the
completion of his studies God's blessing, acquires as many dirhatns as
there are legal determinations (ntasd'il) in the book. These are said
to be 12,000. (H. Khal.) Some of its commentaries are: (a) by A.
b. M. al-Aqta' (475). (b) Zdd al-Fuqahd', by M. b. A. al-Isbljabi (ca.
530). (c) Al-Mujtabi, by Najm-al-din Mukhtar b. Mahmud aj-Zahidi
(658), author of the Qunyat al-Munyah. (d) Al-Yandbi1 fi Ma'rifat
al-Ustl wa 'l-Tafdrl', by Badr-al-din M. b. ' Al. Toshiba (769). (e)
Al-Sirdj al-Wahhdj, by a. Bakr b. 'AH al-Haddadi^al-'Abbadi (800).
(f) Al-Jawharah al-Nayyirah, abridged from the former by the same
author. Well known, (g) Jdmi' al-Mu^mardt wa 'l-Mushkildt, by Yu.
b. 'Umar al-Sufi al-Karuzi. Th) ALBaydn~\>y M. b. Rasul al-Muqani.

(9) Al-Muhit, known as al-Muhit al-Ratfawi or al-Muhit al-Sarakhsi,
by Raji-aJ-din M. b. M. al-Sarakhsi (544). In three sizes. Unless
there is indication to the contrary, the name stands for the large size
of this Muhit as distinguished from the next Muhit. The author gath-
ered together in his work all the legal determinations (masd'il) with
their motives and meanings. He first mentions the cases of the Mabsut,
then the Nawddir, then the Al-Jdmi', then the Ziydddt.

(10) Al-Muhit al-Burhdni fi 'l-Fiqh al-Nu'mdni, by Burhan-al-din
Mahmud b. A. b. al-Sadr al-Shahid al-Bukhari b. Mazah (ca. 570).
This Muhit is sometimes confused with the previous, which is the

180 BIBLIOGRAPHY

more standard of the two. This is a larger work than the previous,
utilizing the works of M. b. al-H. as well as the legal decisions arrived
at by later jurists (fatdwa and wdqi'dt), such as his own father. It
often gives the arguments.

(11) Badai' al-Sand'V fi Tartib al-Shard'i', by Ala'-al-din a. Bakr b.
Mas'ud al-Kasani (vol. ii) (or al-Kashani) Malik al-Ulama' (587).
Cairo, 1327. Apparently it is based on the Tuhfat al-Fuqaha of his
teacher Ala'-al-din M. b. A. al-Samarqandi, who according to the
author is the only jurist who before him took pains to arrange (tartib}
the legal material. The arrangement of the work is highly schematic.
It quotes the views of al-Shafi'i, and sometimes of Malik, with their
arguments, mentioning the Hanifite arguments last.

(12) ^/-Hidayah (vol. ii), by Shaykh-al-islam Burhan-al-din 'Ali b.
a. Bakr al-Marginani (593). It is a commentary on the author's own
Biddyat al-Mubtadi. One of the most esteemed Hanifite compendiums.
Concerning it, it has been said in a verse that, like the Koran, it abro-
gated (naskh) its predecessors. The work may be said to be a com-
mentary on the al-fdmi' al-Sagir and on the Mukhtasar of al-Quduri, on
which two works is based the Biddyat al-Mubtadi. The author, as a
rule, mentions the opinion and argument of Abu Hanlfah after that of
his disciples, unless it be that he sides with the latter. When the
author says, "He said in the Book (kitdb)" he means al-Quduri.
When the latter disagrees with the al-Jdmi' al-Sagir, the author ex-
pressly indicates the difference. Al-Shafi'i's differences and the argu-
ments of each side are mentioned. Commentaries: (a) Al-Nihdyah, by
his disciple Husam-al-dm Hu. b. 'Ali al-Signaqi (710) ; (b) Mi'rdj
al-Dirdyah, by Qiwam-al-din M. b. M. al-Bukhari al-Kaki (749).
Gives the opinions of the four Itndms, their grounds, the old and re-
cent views, etc. (c) Gdyat al-Baydn, by Amir Katib b. Amir 'Umar
al-Itqani (758). (d) /4/-'Inayah (vol. ii), by Akmal-al-din M. b.
Mahmud al-Babarti (786). Esteemed in Turkey and one of the best.
It is an abridgment for purposes of instruction of his own larger
al-Nihdyah. Contains useful analytical summaries, (e) Fath al-Qadir
(vol. ii)T by Kamal-al-din M. b. 'Abd-al-Wahid b^al-Humam (861).
Esteemed for its independence of view. The Path al-Qadir was con-
densed by Ibr. al-Halabi with criticisms, (f) ^/-Kifayah (vol. ii), by
Jalal-al-din b. Shams-al-dm al-Khawarizmi al-Kurlani. The Hiddyah,
the Path al-Qadir and the Kifdyah, with the 'Indyah and the glosses
of Sa'd-allah b. 'Isa Sa'di Tchelebi or Sa'di Efendi (945) on the mar-
gin, have been printed together. Cairo, 1901, 9 vols.

(13) Al-Fard'id al-Sirdjiyyah, by Siraj-al-din a. Tahir M. b. M.
al-Sajawandi (towards end of 6th cent.). This, with its commentary
al-Sharifiyyah, by al-Sayyid al-Shanf 'AH b. M. al-Jurjani (804), are
the standard works on inheritance.

BIBLIOGRAPHY jg!

(14) Al-Hdwi al-Qudsi, by al-Qatfi Jamal-al-din A. b. M. al-Gaznawi
(600), called so because written in Jerusalem (Quds). In three parts,
on (i) dogma (u^ul-al-din) , (ii) ujul-al-fiqh, and (iii), by far the
largest, fiqh proper.

(15) Wiqdyat al-Riwdyah fi Masail al-Hiddyah, by Burhan-al-din
(-shari'ah) Mahmud b. Sadr-al-Shari'ah al-Awwal 'Ubayd-allah al-
Mahbubi (around 680). A compendium based on the Hidayah, with
omission of the reasons and indication of the right views, made for the
benefit of his grandson, 'Ubayd-allah b. Mas'ud. Commentaries: (a)
By 'Ubayd-allah b. Mas'ud al-Mahbubi (747). This is the most well-
known of the commentaries, (b) By 'Abd-al-latif b. 'Abd-al-'azlz
b. al-Malak (around 830). Abridgment: al-Nuqdyah or Mukhta$ar
al-Wiqdyah, by 'Ubayd-allah b. Mas'ud b. Taj-al-sharl'ah Mahmud b.
Sadr-al-shari'ah al-Thani al-Mahbubi (747). A well-known commen-
tary on the latter is the Jami* al-Rumus, by Shams-al-dln M. al-Quhis-
tani (950). Kazan, 1315-16. It is used as basis for rendering fatwas
in the countries east of the river Oxus (ma ward' al-nahr) (H. Khal.).
Ibn 'Abidin, however, would not allow the use as basis for fatwas
of books like the Jdtni', the Durr and the Ashbdh, which besides being
later compilations are often very concise, and at times cite views
which have found no favor (tnarjuh) in the school, or even views of
other schools. The Jdmi' gives no arguments but is rich in details.
Printed with the Jdnd' is an introduction to it by Qadizadah Sharif
Makhdum b. 'Abd-al-rahlm al-Bukhari.

(16) Al-Mukhtdr_ (li 'l-Fatwa\ by a. al-Fadl Majd-al-din 'Al. b.
Mahmud al-Mawsili (b. al-Buldaji) (683). Another of the esteemed
texts. Al-Ikhtiydr is a commentary on it by the same author. It gives
the motives.

(17) Majma' al-Bahrayn wa Multaqa al-Nahrayn, by Muzaffar-al-din
A. b. 'Aii b. al-Sa'ati al-Bagdadi (696). An "esteemed" text, based on
the Mukhtasar of al-Quduri and the Manzumah of al-Nasafi (537),
with additions. Extremely concise, hence easy to commit to memory,
but difficult of understanding (H. Khal.). It indicates the differ-
ences of Abu Hanlfah's disciples as well as those of al-Shafi'i and Malik
by some clever device, such as the use of the nominal instead of the
verbal sentence, etc. Commentaries: (a) By the author himself, (b)
Al-Manba', by A. b. Ibr. al'Unnabi (767). (c) By 'Abd-al-latif b. al-
Malak. Much used.

(18) Kanz al-Daqd'iq, by Hafiz-al-dir^a. '1-Barakat 'Al. b. A. al-Nasafi
(710). An abridgment of his own al-Wdfi (modeled after the Hiddyah
and commented upon by the author himself in the Kdfi). One of the
esteemed texts (mutun tnu'tabarah}, namely the texts which are based
on Zdhir-al-riwdyah sources only (Ibn 'Abidin, pp. 36-7). Commen-

BIBLIOGRAPHY

taries: (a) TabyinjiI-Haqd'iq, by Fakhr-al-din 'Uthman b. 'Ali al-Zayla'i
(743). Bulaq, 13113-15. Very esteemed. It inquires at length into the
differences of al-Shafi'i and refutes his arguments from the Hanifite
standpoint. With glasses by Shihab-al-din A. b. Yunus al-Shilbi (947),
printed on the margin, (b) Rams al-Haqd'iq, by a. M. Mahmud b. A.
al-'Ayni (855). (c) By Mu'in-al-din M. b. Ibr. Mulla Miskln al-Harawi
(before 960). Used in instruction in the Azhar. Glosses thereon by M.

a. al-Su'ud al-Misri entitled Faih-allah al-Mu'in embodying the glosses
of A. b. M. al-Hamawi. Gives the fatwas of later times and is rich
in details, (d) ^/-Bahr al-Raiq (vol. ii), by a. Hanifah al-Thani
(the second) Zayn-al-'abidin (or din) b. Ibr. b. Nujaym al-Misri (970).
Cairo, 1893, 8 vols. One of the most esteemed of later works. The
author gives briefly the motives, makes many keen inquiries (tahrir)
and incorporates the principles involved in new fatwas. The preface
contains a list of the author's sources. The 8th vol. contains the
Takmilah of M. b. Hu. al-Turi, covering the parts of the Kanz left
uncommented-upon by Zayn-al-'abidln. Printed on the margin is the
Minhat al-Khdliq by M. Amln b. 'Abidin. Exolains the difficulties only,
(e) Al-Ndhr al-Fd'iq, by Siraj^aTdin'7Umar b. Ibr. b. Nujaym al-Mi§ri
(1005). Completed until the chapter on habs in the book on Qadd'.

(19) Purar al-Hukkdm (883), by M. b. Faramurz b. 'AH Mulla
Khusrew (885). A commentary on his own Gurar al-Ahkdm. Con-
stantinople, 1299. Enjoys especial favor in Turkey. Used in semi-
naries. The author shows independence of opinion. This fact explains
why Ibn 'Abidin (pp. 36-7) would not place it among the esteemed texts.
Commentaries and glosses: (a) By Qinallzadeh (979). (b) Naqd al-
Durar, by M. b. Mustafa al-Wanquli (1000). (c) Glosses by Mustafa

b. Pir M. 'Azmizadeh (1040). Very esteemed, (d) By Isma'il b.
'Abd-al-gani al-Nabulusi (1062). Very extensive in 12 vols. (c) By
H. al-ShurunbuTaliT( 1069) . (f) Natd'ij al-Naggr fi Hawdshi al-Durar,
by Nuh Efendi b. Mustafa (1070). (g) By Mustafa b. 'Uthman al-Kha-
dimi. (h) Safinat al-Durar. Compiled by some seminary teachers
(mudarris) from fatwa collections and commentaries on the Hiddyah.
Turkish translation by Su. b. Weli al-Anqirawi.

(20) Multaqa al-Abhur, by Ibr. b. M. al-Halabi (956). Contains the
determinations of al-Quduri, the Mukhtdr, Kanz, Wiqdyah, and partly
the Majma' and the Hiddyah. It indicates the views to be preferred
(asahh). At present it is the standard Hanifite text (main). A com-
mentary on it is the Majma' al-Anhur, by 'Ar. b. M. Sheykhzadeh (1078).
Constantinople, 1308. An all-round well-known commentary. This
commentary is known as Ddmdd and used in seminaries in Turkey (H.
Khal., vol. vi, p. 608; Heidborn). A Turkish Translation by Hamldi.
Ragib with a commentary by M. al-Mawqufati.

BIBLIOGRAPHY l$^

(21) <4/-Ashbah wa 'l-Nasd'ir, by Zayn-al-'abidin b. Nujaym (970).
Cairo, 1904- The only Hanifite work where general legal principles are
discussed for their own sake and not incidentally to the legal deter-
mination of cases. Probably the best source for obtaining a knowledge
of the extent to which Hanifite legal discussion becomes strictly scien-
tific. Author is not a pioneer in this respect (cf. H. Klial., p. 313),
for he admits to have followed the examples of Taj-al-dln al-Subki
(771), the Shafiite. The work treats, in seven sections (/onn), of gen-
eral principles (qazvaid kulliyyah, extensively drawn upon in the
Majallah), similarities, differences, niceties, legal tricks, etc. An ar-
rangement of it under the usual fiqh-book chapters is the K. Ithaf al-
Absar wa 'l-Ba§air bi Tabwib K. al-Ashbdh, etc., by M. a. al-Fath.
Alexandria, 1289.

(22) Tanwir al-Abfdr wa Jam? al-Bihdr (995), by Shams-al-din M.
b. Al. al-Gazzi al-Timirtashi (1004). It combines the standard texts.
Ibn 'Abidln does not consider it as an esteemed text. Commentaries:
(a) Mlnah al-Gaffdr, by the author himself, (b) ^/-Dnrr al-Mukhtdr
(1071), by Ala'-al-din M. b. 'Ali al-Ha§kafi (1088), mufti at Damascus^
Bombay, 1309. Condensed from his larger commentary (10 vols.),
Khasd'in al-Asrdr wa Badd'i' al-Afkdr. Very concise and full of de-
tails. Utilizes new fatwas. A commentary on this work is the
Radd al-Mukhtdr by M. Amln b. Abidln (1252). This work may be
said to be the last word in the authoritative interpretation of Hanifite
law. It shows originality in attempting to determine status of present
practical situations, as a rule, shunned by others. Author shows a com-
plete mastery of his subject. Very much used in Turkey, less in India.

(23) Artifc Qdnun-ndmeh-si Sherhi. A commentary in Turkish on
the Ottoman land code by Hu. Husni, late professor in the Imperial Law
School of Constantinople. Constantinople, 1324. The Ottoman land
code promulgated as law in 1274 is a compromise between the rules of
fiqh and customary law.

(24) Majallah^/tfcaw 'Adliyyah. It is an official Turkish codification
of Hanifite law made in 1285 by a special Committee (Mejelleh Jem'l-
eti) under the chairmanship of Ahmed Jewdet Pasha. It represents
the last stage in the development of Hanifite doctrines. The com-
mittee's report is worth reading. Commentary: Durar al-Hukkam
Sharh Majallat al-Ahkdtn, by Khoja Emin Efendi Zadeh 'Ali Haydar.
Constantinople, 1330, 4 vols. (In Turkish.) It is the best and most
scholarly work of its kind. Used as text-book at the Constantinople
Law School and by lawyers and judges.

(25) Fara'id al-Fard'id. by Mahmud As'ad b. Emm Seydi Shehri,
professor at the Imperial Law School at Constantinople. A work in
Turkish on inheritance based on the Sirdjiyyah. Constantinople, 1326.

184 BIBLIOGRAPHY

FATWA COLLECTIONS: (1) K. al-Nawdsil, by a. al-Layth Nasr
b. M. al-Samarqandi (376). Said to be the first work combining the
legal determinations (masd'il) of later doctors (mashd'ikh), such as M.
b. Shuja' al-Thalji, M. b. Muqatil al-Razi, M. b. Salamah (278), a. Bakr
al-Iskaf, and al-faqlh a. ^Ja^far M. b. 'Al. al-Hinduwani (362). The
work also contains, under the heading of 'Uyun al-Masd'il, legal opin-
ions reported from early doctors (ashdb) which were not recorded in
Zdhir-al-riwdyah or other sources.

(2) Majma' al-Nawdzil wa 'l-Wdqi'dt, by a. al-'Abbas A. b. M.
al-Natifi (446). A work of similar nature.

(3) Al-Wdqi'dt, or al-Wdqi'dt al-Husdmiyyah, by Husam-al-din (or
Husam) tJmar b. 'Abd-al-'azlz b. Mazah al-Sadr al-Shahld al-Bukhiri
(536). Combines the two previous with the fatwas of a. Bakr M. b»
al-Fadl and the Fatdwa Ahl Samarqand, indicating the sources by
letters. Also by same author, the al-Fatdwa al-Sugra and al-Kubra,
which latter, judging from the identity of contents (cf. H. Khal. under
Wdqi'dt and Fatdwa Kubra) is probably the Wdqi'dt under another
name.

(4) Khuldsat al-Fatdwa, by Tahir b. A. Iftikhar-al-din al-Bukhari
(542). Combines the fatwas of later mujtahids and those of the
founders.

(5) Dhakhirat al-Fatdwa, or al-Dhakhirah al-Burhdniyyah, by Bur-
han-al-din Mahmud b. A. b. al-,Sadr al-Shahid b. Mazah (ca. 570). An
esteemed work. According to the author, it contains the fatwas ren-
dered by al-Sadr al-Shahld Husam-al-din and by himself in his youth
and, later, during his stay at Samarqand, with additions from the
Nawddir and later sources (H. Khal.).

(6) Al-Fatdwa al-'Attdbiyyah, or Jdmi' al-Fiqh, by a. Nasr A. b. M.
al-'Attabi (586).

(7) Fatdwa Qddihdn, also called al-Khdniyyah, by Fakhr-al-din al-H,
b. Mansur al-Uzjandi al-Fargani Qadikhan (592). Calcutta, 1835, 4
vols. A standard work of enduring reputation. The Vade Me cum of
judges and muftis. Author draws upon the views of later doctors, as
recorded in the fatwa collections mentioned, as well as those of the
founders of the school recorded in the Zdhir-al-riwdyah and the Nawd-
dir, in giving the legal answer to cases of common occurrence. Hence a
mine of information for sociological study. In case there are many
views by later doctors, he only mentions two, his preference first.

(8) Al-Tajnls wa 'l-Masld, by Burhan-al-din 'Ali b. a. Bakr al-Mar-
ginani (593). Author claims to have carried the arrangement of
al-Sadr al-Shahld's work on fatwas (apparently his Wdqi'dt} further,
by classifying (tartib), also the particular opinions within the books

BIBLIOGRAPHY ^5

(kutub), and to have enlarged it with additions from other sources.
The work enjoyed wide use owing to its serviceableness. Author also
wrote the (K.) Mukhtdr(-dt) al-Fatdwa (-Nawdzil).

(9) Al-Fatawa al-Zahiriyyah, by Zahir-al-din a. Bakr M. b. A. (619).
Contains the most needed cases.

(10) Al-Fatdwa al-Walwdlijiyyah, by a. '1-Makarim Zahir-al-din
Ishaq b. a. Bakr al-Walwaliji (710). Condensed from the fat-was of
Husam al-Shahid, with additions.

(11) Khisdnat al-Muftiin, by al-Hu. b. M. al-Sam'ani (740). Indi-
cates the accepted views, contained in previous sources, omitting con-
troversial matters.

(12) Al-Fatdwa al-Tdtdrkhdtnyyah, by 'Alim (al-A'lam) Ibn Ala-al-
din (about 800). ( C '/. Ahhvardt.) It is a great work combining the
Muhit al-Burhdni, the Dhakhirah, the Khdniyyah, and the Zalilriyyah,
with an introduction on science (/j'/w). Arranged according to the
chapters of the Hiddyah. Written by order of the ruler Tatarkhan;
hence the name. Ibr. al-Halabi (956) extracted from it the fatwas that
were not mentioned in current fatwa collections.

(13) Jdmi' al-Fufulayn, by Badr-al-din Mahmud b. Ism. (or Isra'il)
Qadj Simawnah (ca. 818). Combines the Fu$ul al-'hnddi (by 'Abd-al-
rahim b. a. Bakr al-Marglnani; around 670) andFt^u/ (M. b. Mahmud)
al-Ustrushani (632), with additions and nice points. It deals with the
practical part (Mu'dmaldt) of fiqh only and is used by judges in par-
ticular.

(14) Al-Fatdwa al-Bazzdsiyyah, or al-Jdmi' al-lVajiz, or Fatdwa
al-Kardari, by M. b. M. al-Bazzazi al-Kardari (827). It contains the
"cream" of previous works and is relied upon. Abu '1-Su'ud, the mufti,
when asked to compile a collection of the important fatwas, is said to
have answered : " Would I not be ashamed of the author of Bazsd-
ziyyah when he has written his book? — for it is a venerable collection
containing the points of importance, as is proper."

(15) Fatdwa, Zayniyyah are in reality essays on matters of practical
interest (such as the status of the lands of Egypt, istis.hdb, land con-
cessions, Khardj, etc.) by Zayn-al-'abidin b. Ibr. b. Nujaym al-Migri
(970) as collected and arranged by his son A., with additions.

(16) Fatdwa a. al-Su'ud, by a. al-Su'ud M. b. M. al-'Imadi (982-3).
In Turkish. Lived in the reign of the sultan Su., the Magnificent. His
fatwas throw light on adaptation of shari'ah to practical requirements,
particularly as regards land. A collection of the same by Weli al-Aske-
libi Weli Yekan, also containing fatwas by others, is current (H. Khal.).

(17) Mugni al-Mustafti' an Su'dl al-Mufti (or al-Fatdwa al-Hdmi-
diyyah), by Hamid Efendi b. M. al-Qunawi (985). (But cf. Ahlwardt.)
A practical work, but too long. An extract with modifications is the

!86 BIBLIOGRAPHY

Al-'Uqud al-Durriyyah fi Tanqlh al-Fatdwa al-Hdmidiyyah, by M. Amm
b. 'Abidin (1258). Bulaq, 1300. Ibn 'Abidm draws upon his previous
works, such as the Radd al-Mukhtdr, Minhat al-Kltdliq, and Essays
(Rasd'il). A useful work, in the form of questions and answers.

(18) Fatdwa Khayriyyah, by Khayr-al-din b. A. al-Fariiqi al-Ramli
(1081), collected by his son and one of his students. 2d ed. Bulaq,
1300. Consists in reasoned answers to actual questions.

(19) Wdqi'dt al-Muftnn, by 'Aq. b. Yu. Qadri Efendi (after 1088).
Bulaq, 1300. A compact guide for common cases as settled by pre-
vious authorities.

(20) Fatdwa al-Anqirawi, by Shaykh-al-Islam M. b. Hu. al-Anqirawi
(1098). Gives most of the accepted decisions and is relied upon by
doctors and jurists.

(21) Fatdwa 'Ali Efendi, by Shaykh-al-Islam 'AH Efendi Jataljawi
(1103). Constantinople, 1323. (In Turkish.) Well known. Consists
in actual fatwas. Contains the arguments derived later by Salih b. A.
al-Kaffawi from the Arabic sources. Printed on the margin are the
Fatdwa Faydiyyah by Shaykh-al-islam Fayd-allah Efendi.

(22) Al-Fatdwa oZ-'Alamkiriyyah, compiled upon the order of the
sultan Muhyi-al-dm 'Alamklr Ewrenkzlb (ruled from 1069-1118) by a
commission under the chairmanship of Shaykh Nizam. Calcutta, 1243.
The work is meant to be exhaustive and to dispense with the need to
refer to other fatwa collections. It enjoys in India the highest esteem.

(23) Fatdwa 'Abd-al-rahim, by Shaykh-al-islam Menteshzadeh 'Abd-
al-rahim Efendi al-Bursawi (1128). Constantinople, 1827. An esteemed
large collection in Turkish. Contains many fatwas on modern matters
such as the agrarian relations.

(24) Fatdwa Hammddiyyah (1241), by Mawlana a. '1-Fath Rukn b.
Husam al-Nakuri. A compact work of the ' ' Alamklriyyah type. It
gives in preface a long list of sources.

II. SHAFIITE

(1) K. o/-Umm (vol. ii), by M. b. Idris al-Shafi'i (204). Recension
of al-Rabi' a. M. b. Su. al-Muradi. Bulaq, 1321. There is also a re-
cension by al-H. al-Za'farani, one of al-Shafi'i's Bagdad disciples, which
has gone into oblivion. The Mab$ut referred to by the Fihrist must be
the old Bagdad version of the Umm, since the chapters tally. Appar-
ently the K. al-Hujjah which al-Shafi'i is said to have composed in Bag-
dad (Tah-dhlb, p. 61) is another name for the recension of al-Shafi'i's
Bagdad teachings. In the long list of the works ascribed to al-Shafi'i
in Yakut neither title is mentioned. Evidently these names were given
by al-Shafi'i's students when they collected his teachings. The Umm

BIBLIOGRAPHY ify

is a valuable source for the study of law. It is full of hadiths and
contains many repetitions. There are abridged recensions (mukhta$ar)
of al-Shafi'i's doctrines by Al-Rabi', a. Ya'qub al-Buwayti, and a. Ibr.
Ism. b. Yahya al-Muzani (264). The Mukhtasar of al-Muzani is the
most widely known of them. It is printed on the margin of the Umm.
Al-Nawawi speaks of it as one of the five widely-used books at his
time, the other four being the Muhadh-dhab, the Tanbih, the Wasit
and the IVajiz, to be mentioned later. The Mukhta$ar of al-Muzani
hardly deserves its name, for it is still large, often literally quoting the
Umm. Many commentaries were written on it, notably by a. al-Tayyib
al-Tabari, M. b. A. al-Shashi. and Zakariya' b. M. al-An§ari. There is
a smaller compendium by al-Muzani, called Nihdyat al-Ikhtijdr, where
he often indicates his own views, which in many instances disagree
with those of al-Shafi'i (Subki, p. 244). The opinions of al-Shafi'i
cited in the Umm and the other recensions of his teachings in Egypt
are called his recent (jadid) opinions in distinction from his older
views (qadim) contained in recensions of his teachings in Bagdad,
such as the K. al-Hujjah.

(2) Al-Hdwi al-Kobir, by a. al-H. 'AH b. M. al-Mawardi (450). An
exhaustive treatise of fiqfi. A condensation of it is the author's
al-Iqndt. Al-Mawardi is said to have written the Iqndf upon the order
of the calif al-Qadir-bi-'llah in competition with al-Quduri, the Hanifite.
a. M. 'Abd-al-wahhab b. M., the Malikite, and a Hanbalite. The story
says that al-Mawardi was the winner. (Yaqut, vol. v, p. 406.)

(3) Al-Ahkdm al-Sultdniyyah, by the same al-Mawardi. Ed. Max
Enger, Bonn, 1853. This is a justly renowned work giving the de-
scription of an ideal state. Some of the subjects it covers are not to
be found elsewhere, as the author himself points out in his conclusion.
The treatment is schematic and clear-cut, as regards content, in many
cases, closely following upon al-Shafi'i's Umm. The views of a. Hani-
fah and Malik are mentioned. The motives are not, as a rule, gone into.
Strictly speaking, it is not a work of fiqh proper. In so far as it treats
questions of fiqh, it does so from the standpoint of the state. The
first part of the work (the first 107 out of 432 p.) has been translated
into French by L. Ostrorog, Paris. 1901-6.

(4) ^/-Tanbih, by a. Ishaq Ibr. b. 'Ali al-Shirazi (476). Ed. A. W.
T. Juynboll, Leyden, 1879. A well-known compendium which may be
said to have eclipsed its predecessors, though itself has had a similar
fate. Clear and detailed. The best known of the commentaries on it
is that by Badr-al-din M. (b. Bahadur) b. 'Al. al-Zarkashi. Al-Mu-
hadh-dhab fi 'l-Madh-hab is another well-known work of al-Shirazi,
formerly much used. It gives the arguments and difficult points.

(5) Nihdyat al-Matlab fi Dirdyat al-Madh-hab, by a. '1-Ma'ali 'Abd-

BIBLIOGRAPHY

al-Malik b. a. M. 'Al. al-Juwayni, Imam-al-haramayn (478). An exten-
sive work in 40 parts, " such as has not been composed in Islam its
like" (Ibn Khallikan in H. Khal.). (H. on S.)

(6) Al-Basit, by Hujjat al-islam a. Hamid M. b. M. al-Gazzali (505).
Based on the Nihdyat al-Matlab of his teacher Imam-al-Haramayn.
Al-Waslt al-Muhlt bi Aqtdr al-Basit is a condensation of the former
by the author himself. One of the five books referred to by al-Nawawi
as being in use. Al-W&jiz, by the same author; a condensed compen-
dium based on the former, with additions. Cairo, 1317. Also one of
" the five books," and the best known of his works on fiqh. It is an
excellent schematic summary of all the Shafiite views, independent
(aqwdl) or deduced (wajh), the authors responsible for them not
being mentioned. The differences of al-Muzani, a. Hanifah and Malik
are indicated by letters. The best known of the commentaries on the
Wajiz is the Path al-'Asls 'ala K. al-Wajis, by a. al-Qasim al-Rafi'i
(623). Al-Rawdah, by al-Nawawi, is an abridgment of it.

(7) Ihyd' 'Uliim al-Din, by the same al-Gazzali. Bulaq, 1289. Al-
though it contains many chapters of fiqh, the book is not strictly a
book on fiqh but has a larger scope. It is meant by the author as a
plea for the regeneration of religion, and represents a reaction against
its increasing secularization. It gives valuable sidelights into existing
conditions. It treats in four parts (rub'), questions of worship
('ibdddt), personal manners, character, and social relations. "It has
been said about this book that if the books of Islam were destroyed
except the Ihyd', it would dispense with those destroyed" (H. Khal.).

(8) Al-Taqrib fi 'l-Fiqh, or Mukhtasar a. Shuja (also called Gdyat
al-Ikhtisdr}, by a. Shuja' A. b. al-H. al-Igfahani (593). Brief and clear.
The most widely-spread Shafiite compendium (S.). Commentaries:

(a) Al-Iqna fi Hall A If dz a. Shuja, by M. b. al-Khatib al-Sharbini (977).

(b) Fath al-Qarib al-Mujib fi Shark Alfdz al-Taqrib, also called Al-
Qawl al-Mukhtdr fi Sharh Gdyat al-Ikhtisdr, by M. b. al-Qasim al-Gazzi
(981). Publ. with French translation by Van den Berg, Leyden, 1895.
It is elementary, explaining chiefly questions of grammar and syntax.
Used by students in Java. Glosses on it by Ibr. b. Qasim al-Bajuri
(1278). Cairo, 1901. They consist in his lectures in the Azhar and are
used as text-book. Author wrote his glosses because the previous
glosses by Ibr. b. M. al-Birmawi (1106), known as al-Muhash-shi (S.),
though complete, contained difficult passages. Goes at length into
grammatical and syntactical details. Very useful for beginners. (For
criticism of Bajiiri by Hurgronje, cf. De indische Gids, 1884.)

(0) Minhaj al-Tdlibln, by Muhyi-al-dln a. Zakariya' Yahya b. Sharaf
al-Nawawi (676), an improved abridgment of the Muharrar by a.
'1-Qasim 'Abd-al-kanm b. M. al-Rafi'i (623), a well-known work based

BIBLIOGRAPHY !89

on the works of al-Gazzali (H. on S.). It is a standard, concise, clear
text of great fame. It indicates by a clever terminology (see its pref-
ace) the original views (na$s or qawl) of al-Shafi'i as well as the views
(wajh, qawl mukharraj) deduced by his followers by analogy. Publ.
by Van den Berg with a French translation. Batavia, 1882-84. Com-
mentaries: (a) By Jalal-al-din M. b. A. al-Mahalli (864). Goes into
the arguments, (b) Tuhfat al-Mukhtdj li Shark al-Minhdj, by A. b. M.
b. II ajar (973). Cairo, 1290. (c) Mugni al-Mukhtdj ila Ma'rifat Mafdni
Alfdz al-Minhdj, by M. b. al-Khatib al-Sharbini (977). Cairo, 1308.
A fairly exhaustive, useful work, giving in a concise manner most of the
matter found in other commentaries. It indicates the views that have
found acceptance and gives briefly the motives, but does not go into
syntax and grammar, (d) Xihdyat al-Mukhtdj ila Shark al-Minhdj, by
Shams-al-din M. b. A. al-'Ramli (1004), with glosses printed on the
margin by A. b. M. 'Abd-al-razzaq al-Rashidi (wrote in 1086) and
a. al-Diya' 'Ali b. 'AH al-Shabramallisi (1087). Cairo, 8 vols. Indi-
cates clearly the views that have been endorsed by the Sham'te school.
By "qdld" (they two said) he maans the "two imdms," namely
al-Rafi'i and al-Nawawi, by "al-Shdrih" (the commentator), Jalal-al-din
al-Mahalli, and by " al-Shaykh," Zakariya' al-Ansari. The Muharrar
and the Minhdj with its two commentaries, the Tukfah and the Nihdyah,
"are considered as the Law books of the Shafiite school" (H. on S.).

(10) Manhaj al-Tulldb, by a. Yahya Zakariya' b. M. al-An§ari (926).
An abridgment of the Minhdj which itself became classical and is to-
day used in instruction (S.). A well-known commentary on it is the
Path al-Wahhdb by the author himself. Glosses by Su. al-Bajirmi

(1221).

(11) Tahrir al-Tanqlk, by the same Zakariya', an extract from the
Tanqlh al-Lubdb of a. Zur'ah (b.) al-'Iraqi (826), with some additions,
controversial matter being left out. The Tanqth itself was a conden-
sation of the Lubdb of a. al-H. A. b. M. aj-Mahamili (415). A com-
mentary on the Tahrir is the Tuhfat al-Tulldb by Zakariya' himself.
Glasses thereon: (i) by al-Madabigi (1170); (ii) by 'Al. al-Sharqawi
(1227). Very much favored. Used by students in the Azhar (S.).
Printed with notes by al-Sayyid Mustafa al-Dhahabi on the margin,
Bulaq, 1891.

(12) Asna al-Matdlib, by the same Zakariya' al-Ansari. A commen-
tary on the Rawd al-Tdlib by Sharaf-al-din Ism. b. a. Bakr b^aJ^Muqri
(837). Printed with glosses by Shihab-al-din a. al-' Abbas A. b. A.
al-Ramli (957). Cairo, 1895. Very much like the Mugni, though not
quite so exhaustive.

(18) Qurrat al-Ayn (982), by Zayn-al-din al-Malibari. A commen-
tary on it by the author himself is the Path al-Mu'in. Glosses on it:

190

BIBLIOGRAPHY

Tdnat al-Tdlibin, by Sayyid Bekri a. Bekr Shatta', a Mecca professor.
Cairo, 1884, 4 vols. Gives the recent fatwas. The works of this group
are very much used in East Africa and British and Dutch Indias (H.
on S.).

FATWA COLLECTIONS: (1) Fatdwa b. al-Saldh, by 'Uthman b.
'Ar. b.jd-Salah (642), collected by his disciples. Very useful. (H. Khal.)
("2) 'Uyun al-Masd'il al-Muhimmdt, by Yahya b. 'Sharaf al-Nawawi
(676), in two sizes. Answers on actual cases. (3) Fatdwa b. Firkdb,
by a. M. 'Ar. (b.) Ibr. al-Fazari al-Firkah al-Misri (690). ("4) Fatdwa
al-Zarkashi, by Badr-al-din M. b. Bahadur al-Mi§ri al-Zarkashi (794).
(5) Fatdwa al-Ramli, by 'Shihab-aWin a. al-'Abbas A. b. A. al-Ramli
(957), edited by his son Shams-al-din M. b. A. al-Ramli (1004).
Printed on the margin of the al-Fatdwa al-Kubra. (6) Al-Fatawa al-
Kubra al-Haytamiyyah al-Fiqhiyyah, by A. b. M. b. Hajar (973). Cairo,
1890, 1308. Answers to actual questions with long arguments.

III. MALIKITE

(1) (Al-Masd'U) o/-Mudawwanah (vol. ii). Recension of Qa^Ji
Sahnun a. Said b. 'Abd-al-salam al-Tanukhi (240). Cairo, 1323-24. It
consists of questions by Sahnun and answers by 'Ar. b. al-Qasim (191),
a student of Malik for 20 years. These answers as a rule repeat the
literal words of Malik, though at times they are b. al-Qasim's own in-
terpretation of the same. The Mudawwanah is a revision by b. al-Qasim
of the Asadiyyah of Asad b. al-Furat, when it was submitted to b.
al-Qasim by Sahnun, who had studied the Asadiyyah under Asad.
Asad having failed to incorporate the corrections of b. al-Qasim as found
in Sahnun's copy, the Asadiyyah fell into oblivion. After b. al-Qasim's
death, Sahnun incorporated in his copy hadiths in support of some of
the views and improved its arrangement. Mukhtalitah is another name
given to the Mudawwanah (Fihrist al-Ishbili, p. 240, seems to confirm
this), though in another version it is the name given to the A sadiyyah on
account of Asad's having studied previously the Hanifite law also. (Cf.
Ibn Khaldfin, Vincent, Mudawrwanah, vol. i, p. 12; Kharashi, 'Adawi,
vol. i, p. 38.) The Mudawwanah is the greatest Malikite authority.
Its relation to other books has been likened to that of the opening
chapter (al-Fdtihah) of the Koran. The Malikites by "The Book"
mean it. The Mudawwanah found special favor among the Moham-
medans of W. N. Africa (Ifriqiyah) (such as b. Yunus and al-Lakhmi)
(Ibn Khaldfin), who showed great zeal in studying and commenting
on it.

("2) Al-JVadihah, by a. Marwan 'Abd-al-malik b. Habib al-Sulami
(238), of Spain, who studied under b. al-Qasim and spread the Malikite
doctrines in Spain. The Wddihah naturally found favor in Spain.

BIBLIOGRAPHY lgl

(3) Al-Mustakhrajah min al-Asmi'ah al-Masmu'ah mm Malik b.
Anas, known as Al-'Vtbiyyah, by M. b. A. al-'Utbi al-Qurtubi (255),
student of b. Habib. This work superseded the Waftbah and itself be-
came an object of study and comment (Ibn Khaldun). The commen-
tary on it by M. b. A. b. Rushd (520) deserves mention. It is entitled
K, al-Baydn iva 'l-Tahs.il wa 'l-Sharb wa 'l-Tawjlh wa 'l-Ta'lil fi Masd'il
al-Mustakhrajah. (Cf. Prof. C. A. iNallino's " Intorno de Kitdb al-Baydn
del Giuristo Ibn Rushd " in the Homenaje a D. Fr. Codera, Zaragoza,
1904.) Arranged in the conventional fiqh-book chapters. The author,
after citing the questions and Malik's answers and e. g. the view of b.
al-Qasim, introduces his own view by "Qdl M. b. Rushd," supporting
it by lengthy arguments. A valuable source-book for determining the
development of the school. The Mudawwanah, IVddijiah and 'Utbiyyah,
with the Mawdziyyah of M. b. Ibr. b. al-Mawaz (281), a student of
b. 'Abd-al-Hakam (cf. Husn al-Muhdd.arah, p. 169), are called
al-Ummahdt, i. e., the mother books. The last work does not seem to
have spread as widely as the others. Ibn Khaldun does not mention it.
Some would add to this list also the following: (a) al-Majmu'ah, by
M. b. 'Abdus (260; but cf. Brockelmann, p. 177) ; (b) al-Mabsutah, by
a. Ishaq al-Qadi Ism. b. Ishaq (282), of Bagdad (cf. Vincent). All of
them are necessarily very long and badly arranged and uncoordinated.

(4) Tah-dhib, by a. Sa'id al-Barada'i. It is a condensation of the
Mudawwanah and the Mukhtalitah which found great favor »vith the
jurists of Ifriqiyyah and superseded its predecessors. (Ibn Khaldun;
cf. also b. Tumart, p. 41.) Al-Maqqari (vol. ii, p. 122) reads as follows
concerning a K. al-Tah-dhib by al-Baradha'i al-Saraqusti : "As regards
(books of) fiqh, the book that is relied upon at present, and the one
that is designated by the Malikites as far as Alexandria as the Book, is
tbe Tah-dhib of al-Baradha'i al-Saraqusti." (Brockelman speaks of a
Tah-dhib Masd'il al-Mudawwanah wa 'l-Mukhtalitah (372) by a certain
Khalaf b. a. al-Qasim al-Bagdadi, a student of b. a. Zayd. It may be
the same book.)

(5) K. al-Nawddir, by 'Ubayd-allah b. 'Ar. b. a. Zayd al-Qayrawani
(386). It combines the previous works.

(6) Al-Rlsdlah is by the same b. a. Zayd. Cairo, 2d ed., 1905. It is
a clear, brief compendium — said to be the first in the Malikite school —
covering also questions of catechism and meant to be a guide for the
layman. It is a compendium of great authority that has been copied
and commented upon more than any other. (Vincent.) The author
also wrote a Mukhta$ar, where he abridged the Mudawwanah and the
Mukhtalitah. (Ibn Khaldun.)

(7) Abu Bakr M. b. 'Al. b. Yunus al-Tamlmi al-Saqali (451) wrote a
commentary on the Mudawwanah where he included the greater part

192

BIBLIOGRAPHY

of b. a. Zayd's Nawddir. Ibn Yunus' originality of thought consisted in
indicating (tarjih) the views to be preferred.

(8) K. al-Tabsirah, by a. al-H. 'Ali b. 'Al. al-Lakhmi (478). It is a
well-known Ta'liq on the Mudawwanah. Al-Lakhmi's characteristic
has been his independence of view (ikhtiydr).

(9) Al-Muqaddamdt al-Mumahhaddt li Bay an ma Aqtadat-hu Rusum
al-Mudawwanah min al-Ahkdm al-Shar'idt wa 'l-Tahsildt al-Muhkamdt
li Ummahdt Masd'iliha al-Mushkildt (Ibn Rushd, M.), by a. al-Walid
M. b. A. b. Rushd al-Qurtubi (520), grandfather of the famous phil-
osopher b. Rushd (Averroes). Cairo, 1907. It indicates the etymology
and the justification of the words and meanings of the Mudawwanah.
Treatment analytical. Ibn Rushd distinguished himself by singling out
the true reports (riwdyat) from Malik ('Adawi, p. 41).

(10) Abu 'Al. M. b. 'Ali al-Tamlmi al-Maziri (536), known as the
Imam. He is another famous doctor who commented on the Mudaw-
wanah. Al-Maziri distinguished himself by his generally accepted in-
dependent views (qawl). Ibn Yunus, al-Lakhmi, b. Rushd and al-Maziri
are the four authorities whose opinions are mentioned and authorship
is specified by Khalil in his famous Mukhtasar.

(11) Mukhtasar, by a. 'Amr 'Uthman b. 'Umar b. al-Hajib (646).
This is a compendium that combines all the Malikite views and was
much read in the Magrib in the days of Ibn Khaldun. It was commented
upon among others by M. b. 'Abd-al-salam al-Umawi (wrote in 799),
b. Rushd, and Khalil b. Ishaq (the Tawdlh).

(12) Biddyat al-Mujtahid wa Nihdyat al-Muqtasid (Ibn Rushd, B.),
by a. al-Walid M. b. A. b. Rushd al-Qurtubi, well known as b. jRushd
al-Hafid (the grandson) (595). Cairo, 1329. The work was written
by the author in order to enable the jurists to decide cases for which
the shari'ah did not provide. It is a masterly analysis of the main
issues at law with the views held by doctors of various schools and
the grounds underlying their viewpoints ably discussed. The grounds
ascribed by b. Rushd to the doctors do not, therefore, always tally
with those claimed by them.

(13) Al-Mukhtasar, by Diya'-al-din a. al-Safa' Khalil b. Ishaq
al-Jundi al-Misri (767). Paris, 1318. It is the most famous compen-
dium of the Malikite school, and since its writing virtually the most
authoritative summing-up of the Malikite doctrines. Perhaps no com-
pendium has found such favorable reception as this. It is said to
contain 100,000 explicit and as many implicit legal determinations. It
is an attempt to include in the briefest possible compass the accepted
doctrines of the school on the minutest details, the holders of the
opinions and the unsettled points being hinted at by a clever use of
words as explained in the preface. Probably here lies the secret of

BIBLIOGRAPHY ig$

its success despite the fact that the work is involved to an un-
heard-of degree and absolutely defies understanding. A French trans-
lation of the Mukhta$ar, with explanatory phrases thrown in the text,
by Perron, in Exploration scientifique de I'Algerie, Sciences hist, et
gtogr., vols. x-xvi, Paris, 1848-52. Commentaries: (a) By Taj-al-dln
Bahram b. 'Al. al-Damiri (805), in three sizes; (b) by a. 'Al. M. b.
Yu. al-Mawwaq al-'Abdari al-Garnati (897), in two sizes, (c) Fatb
al-Jalil, by M. b. Ibr. al-Tata'i (942). Glosses thereon by al-Kharashi
(lioi). Jaivdhir al-Durar is another smaller commentary by al-Tata'i.
(d) By a. 'Al. M. b. MTal-Khattab (953). A large commentary, (c)
By al-Laqani (958) on the preface (khutbah) with glosses by al-Zar-
qani (1099). (f) By a. al-Naja' Salim al-Sanhuri (1015). (g) By 'Ali
al-Ujhuri (1066), in two sizes, (h) By 'Abd-al-baqi b. Yu. al-Zarqani
(1099), with glasses by M. b. al-Talib al-Taudi (1207). Bulaq, 1307. 8
parts. An advanced commentary going into arguments and quoting
views of other commentators (Vincent). Also glosses by M. b. al-H.
al-Bannani. (i) by a. 'Al. M. al-Kharashi (vol. ii) (noi), with
glosses by 'AH al-'Adawi (vol. ii) (1189). Cairo, 1307. A very well-
known commentary. Goes into grammatical and syntactical details.
Does not as a rule go into arguments. There is also a larger commen-
tary by al-Kharashi. (j) By Ibr. b. Mar'i al-Shabrakhiti (1106), in
three sizes, (k) By A. b. M. al-Dardir (1201). Bulaq, 1282. Glosses
thereon by M. b. 'Arafah al-Dasuqi. Cairo, 1310. Both the commen-
tary and the glosses are very much esteemed. (1) By M. 'Alish (1299),
with glosses by himself. Printed in 4 vols. Bulaq.

(14) Tab$irat al-Hukkdm fi U$ul al-Aqtfiyah wa Mandhij al-Ahkdm,
by Ibr. b. 'Ali b. Farhun al-Andalusi (799). Formerly much used. In-
tended for judges especially.

(16) Al-Mukhtasar fi 'l-Fiqh, by M. b. M. al-Wargami al-Tunisi,
b. 'Arafah (803).

(16) Tuhfat al-Hukkdm H Nukat al-'Uqud wa 'l-Ahkdm, by a. Bakr
M. b. M. b^Asim (829) of Granada. A celebrated compendium in
rajas verse. it"Ts~brief and clear. Commentaries: (a) By M. b. A.
Mayyarah al-Fasi. Cairo, 1807. (b) By 'Ali b. 'Abd-al-salam Tasuli
Sabrari. Bulaq, 1256.

(17) Aqrab al-Masdlik Ii Madh-hab al-Imdm Malik, by a. al-Barakat
A. b. M. al-Dardir al-'Adawi al-Azhari (1201). An abridgment of the
Mukhtasar of Khalll. Though not quite as rich in details as the latter
work, it is remarkably clear for a Malikite compendium. Commentary
by the author himself known as Shark_al-Saglr. Bulaq, 1281. Where
Khalll indicates two views, al-Dardir often gives only the one pre-
ferred by him. This work, and the author's and al-Kharashi's com-
mentaries on Khalll, are used by students in the Azhar (Iktifd1).

BIBLIOGRAPHY

Glosses by A. b. M. Al-Sawi (1241). Named Bulgat al-Sdlik li Aqrab
al-Masdlik. Cairo, 1903.

(18) Al-Majmu' fi 'l-Fiqh, by M. b. M. al-Sunbawi al-Amir (1232).
A compendium written on the same plan as that of Khalil. Commen-
tary and glosses by the author himself.

FATWA COLLECTION'S : (1) Al-Mi'y&r al-Mugrib wa 'l-Jdmi'
al-Mu'rib 'an Fatdwi A'ldm Ifriqiyah wa 'l-Andalus wa 'l-Magrib, by A.
b. Yahya al-Wanshansi (914). (2) Path al-Ali al-Mdlik fi-'l-Fatwa
'a/a Madh-hab al-Imdm Malik, by a. 'Al. M. b. A. 'Alish (1299). 2 vols.,
Cairo, 1300. The fatwas given by the author arranged in the conven-
tional fiqh-book chapters.

IV. OTHER SCHOOLS

HANBALITE: Dalll al-Tdlib fi Nayl al-Ma'drib, by Shaykh Mar'i,
b. Yu. (1033). This is the text used by Hanbalite students in Mecca.
(Mekka, vol. ii, p. 249.)

SHI'ITE: SharaV al-Isldm (between 436 and 676), by Najm-al-din
Ja'far b. M. al-Hilli a. al-Qasim. A commentary on it is the Masdlik
al-Afhdm (964) by Zayn-al-dln b. 'AH al-Shami al-'Amili. A French
translation of the Shard'i' is A. Querry's Droit Musulman, Paris, 1871.
N. B. E. Baillie's A Digest of Moohummudan Law, etc,, part ii, 2d ed.,
London, 1887, is based on the same work.

V. BOOKS ON DIFFERENCES OF MOHAMMEDAN SCHOOLS
(Ihktildf al-Madhdhib)

(1) Ikhtildf al-Fuqahd', by a. Ja'far M. b. Jarir al-Tabari (310), the
Shafiite. Ed. F. Kern, Cairo, 1320. (2) Ikhtildf al-Fuqahd', by a. Ja'far
A. b. M. al-Tahawi (321), the Hanifite. (3) Rabmat _al-Ummah fi Ikh-
tildf al-A'immah (780), by Sadr-al-dln M. b. 'Ar. al-Dimashqi al-'Uth-
mani, the Shafiite. Bulaq, 1300 (with the al-Mlzan al-Khidriyyah of
al-Sha'rani). (4) ^/-Mizan al-Kubra, by 'Abd-al-wahhab b. A. a^Sha^
rani (973), the Shafiite. 2d ed., Cairo, 1318 (the Rahmat al-Ummah
on the margin). An abridgment of it by the author himself is the
al-Mizdn al-Khidriyyah. French translation entitled Balance de la lot,
etc., by Perron, Algiers, 1898.

BOOKS ON SECTS (RELIGIOUS AND PHILOSOPHICAL)

(1) K. al-Farq bayn al-Firaq wa Bay an al-Firqah al-Ndjiyah minhum,
by a. Mansfir 'Aq. b. Tahir al-Bagdadi (429), the Shafiite. Cairo, 1328.
(2) K. (al-Fisal fi} al-Milal (wa 'l-Ahwd'} wa 'l-Nihal, by a. M. 'Ali
b. A. b. Hazm (456), the Zahirite. Cairo, 1317. Polemical. Goes into
lengthy metaphysical and other arguments. "This book is from the

BIBLIOGRAPHY

195

worst of books, and our doctors have never ceased forbidding its study
on account of its despise of the Sunnites " (al-Subki as quoted by H.
Khal.). (8) K. al-Milal wa 'l-Nibal, by a. al-Fath M. b. 'Abd-al-karim
al-Shahrastani (548). 'Ed. W. Cureton, London, 1842. Also printed
on the margin of the preceding book. A compact work treating of
religious and philosophical sects in general in a clear and summary
manner. Al-Subki approves of this book. (H. Khal.) (For further
details, cf. I. Goldziher, " Zur Litteratur des Ikhtildf ol-Madhdhib,"
ZDMG, 1884, vol. 38, pp. 669-82; d. Zohiriten, pp. 37 et seq.; F. Kern,
" Tabari's Ikhtildf al-Fuqahd1," ZDMG, 1901, vol. 55, pp. 61-95.)

MISCELLANEOUS

(1) K. o/-Agani. by a. al-Faraj 'Ali al-I§fahani (356). Cairo, 1285.
(2) Belin, " fitude sur la propriete fonciere," /. Asiatique, 1861-62. (8)
Bercbem, Max van, La propriete territorial et fimpot fancier sous les
premiers calif es, Geneve, 1886. (4) Bruno, H., Regime des eaux en
droit musulman, Paris, 1913. (5) Caetani, L., Annali dell' Islam, Mi-
lano, 1905. A monumental work in course of publication. Published
as far as vol. vii (year 32). (6) Defteri Muqtasid, by Su. Sudi; 2d
ed., Constantinople, 1307. (7) Gatteschi, D., Real Property, Mort-
gage and Waqj According to Ottoman Law. Translated from the
Italian by Edw. A. Van Dyck. London, 1884. (8) Ghali, R.. De la
tradition consider^ comme source du droit musulman, Paris, 1909.
(9) Goldziher, I., die (d.) Zahiriten, Leipzig, 1884. (10) Goldziher, I.,
"Kampfe urn die Stellung des Hadit im Isldm" ("Kampfe"). Z. D.
M. G., vol. 61, pp. 860-72. (11) Goldziher, I., Vorlesungen iiber den Islam,
Heidelberg, 1910. (12) Goldziher, I., " Das Princip des Istisbdb in der
muh. Gesetzwiss.," Vienna Oriental Journal, pp. 228-36. (18) Goldziher,
I., " Muh. Recht in Theorie und Wirklichkeit " Zeits. fur vergl Rechts-
iviss., vol. viii, pp. 406-23. (14) Ibn Hisham: Das Leben Muhammad's
nach Muhammad ibn Ishaq (151) bearbeitet von 'Abd-al-malik Ibn
Hischam (218). Ed. F. Wiistenfeld, Gottingen, 1858-60. (16) Hurgronje,
C. Snouck, " Le droit musulman," Revue de I'histoire des religions, 1898,
vol. 37, pp. i et seq., and 174 et seq. (16) Hurgronje, C. Snouck, The
Achehnese. English trans, by A. W. S. O'Sullivan, Leyden. 1906. Based
on critical first-hand observation. For bibliogr. information see vol. ii,
p. 9. (17) Kohler, Dr. J., " Die Wirklichkeit und Unwirklichkeit des
islam. Rechts," Zeits. fur vergl Rechtswiss., vol. viii, pp. 424-32. (18)
Maqrizi, K., Al-Mawd'ig wa 'l-I'tibdr fi Dhikr al-Khitat wa 'l-Athdr, by
a. al-'Abbas A. b. 'Ali. al-Maqrizi (845). Cairo, 1324-26. (19) Margo-
liouth, D. S., The Early Development of Mohammedanism, Lectures de-
livered in the University of London, New York, 1914. (20) Padel et
L. Steeg, De la legislation fonciere ottomane, Paris, 1904, (21) Spren-
ger, A., " Eine Skizze der Entwickelungsgeschichte des musl. Gesetzes."

I95 BIBLIOGRAPHY

Zeitsch. fur vergl. Rechtsw., 1892, vol. x, pp. 1-31. (22) Worms, Dr.,
"'Recherches sur la constitution de la propriete territoriale dans les
pays musulmans et subsidiairement en Algerie," 7. Asiatique, 1842-44.
(23) Yahya: K. al-Khardj, by Yahya b. Adam b. Su. al-Qurashi (203).
Ed. Th. W. Juynboll, Leyden, 1896. A valuable source written in the
way of hadith collections. (24) Young, G., Corps de droit ottoman,
Oxford, 1005-6. (25) Zaydan: Tdrikh al-Tamaddun al-Isldtni, by Jurji
Zaydan, late editor of the Hildl; 5 vols., Cairo, 1902-6.

PART II
FINANCIAL THEORIES

CHAPTER I
PRELIMINARY REMARKS

" MOHAMMEDAN," as used in these pages, does not mean
every financial theory evolved by a Mohammedan writer;
nor does it mean the theories evolved concerning every
Mohammedan financial practice. It means only the theories
evolved by Mohammedan writers in conformity with the
principles of shari'ah on the basis of the financial practices
of the early Mohammedan state, particularly during the
calif ship of Omar. In other words, only the financial prac-
tices which were sanctioned by usage in the early Moham-
medan state and only the financial theories treated in the
books of fiqh are called " Mohammedan ". Financial prac-
tices which have not received sanction from the early Mo-
hammedan state or financial theories which have not been
based on the shari'ah, even if practiced or written by Mo-
hammedans, remain outside the pale of shari'ah and may
not properly be called " Mohammedan ". This is in strict
accordance with the usage of the Mohammedan writers,
who in their works on fiqh discuss only the "Mohammedan"
theories of finance and do not treat the practices which
came into Mohammedan use later, except in terms of sum-
mary condemnation.

These extra-shari'ah practices made their way into Mo-
hammedan history rather early, and in the course of time
entirely displaced the shari'ah practices. The new taxes
resulting from the introduction of these practices have been
given various designations, such as hilali, marafiq, ma'awin,
mukus x and 'urfi.2

1 Maqrlzi, p. 167. Defteri Muqtajid, p. 22.

199

200 MOHAMMEDAN THEORIES OF FINANCE

Al-Maqrizi, who in his Khitat gives a detailed description
of the extra-sharl'ah taxes in Egypt during his time, states
that the revenue of Egypt at that time consisted of the two
classes of kharaji (i. £., the shari'ah taxes levied on the non-
Moslems) and hilali revenue (mat), and condemns the latter
as instituted " one after another by evil waits (gover-
nors) ".l

The author of the Defteri Muqtasid,2 on the other hand,
sees no objection to the extra-^arf ah taxes on the part of
the shari'ah, when they are not exorbitant. In Mohamme-
dan histories frequent allusion is made in terms of praise
to attempts of pious Mohammedan rulers immediately after
their accession to power to remove the pernicious practice
of extra-shari'ah taxes,3 but the invariable refrain is that
the practice reappeared.4 Part II concerns itself exclusively
with the Mohammedan theories of finance and has nothing
to do with the eyLtra-shari'ah taxes.

The various shari'ah sources of revenue discussed by the
Mohammedan writers fall into two well-defined classes:
the class of religious revenue collected from Moslems
alone; and the class of secular revenue derived primarily
from non-Moslems. The religious revenue includes the
three zakat taxes constituting the so-called sadaqah or zakat
revenue and the financial contribution for the conduct of
holy war and other affairs of public interest. The three
zakat taxes are the zakat on flocks and herds, the zakat of
gold and silver and the articles of trade, and the zakat of
the produce of the earth, or tithe.5 The secular revenue,

1 Maqrizi, p. 166.

' P. 24.

1 Cf. Maqnzi, p. 167, 11. i, 15, 19; p. 169, 1. 10.

4 Cf. ibid., p. 167, 1. 17; p. 169, 1. 13.

6 As this dissertation deals primarily with the Hanifite doctrines, its

PRELIMINARY REMARKS 2Ol

on the other hand, comprises the kharaj or land-tax, the jiz-
yah or poll-tax, the tax on non-Moslem traders, the imposts
on spoils, mines, and treasure-trove, and the estates of per-
sons who died intestate and without heirs.

For the sake of clearness, these taxes are discussed under
two main divisions, one on revenue, and the other on ex-
penditure; while the subject of public domain, which
seemed to belong in neither of these divisions, is treated as
a third coordinate division in a chapter bearing that title.
The division on revenue includes discussions of assessment
and collection, while that on expenditure considers the prin-
ciples governing the disposal of public funds and the allied
topics of public treasury and budget, military stipends,
grants, and public records. The sharp distinction between
the religious and the secular revenue is indicated by the
separate treatment accorded to religious and secular reve-
nue. Owing to the intimate connection between the prin-
ciples concerning the status of persons and lands, on the one
hand, and the kharaj and jizyah, on the other, the discus-
sion of the latter has been preceded by an explanation of
the former. The discussion of spoils, as a source of reve-
nue, is justified by the fact that one-fifth of them belonged
to the state, and the remaining four-fifths divided among
the soldiers in reality constituted a state expenditure. This
is easy to understand if it be remembered that the conduct
of holy war was one of the primary functions of the
Mohammedan state and the expense for it had to be pro-
vided for by the state in some way. Moreover, the four-
internal arrangement has been made to fit those doctrines, and there-
fore need not always be in accordance with the Shafiite and Malikite
views. For instance, according to the Shafiites, and partly to the Mali-
kites also, the taxes levied on mines and treasure-trove are consid-
ered as sakat, and should consequently be treated under the zakdt taxes
rather than under the secular taxes where they have been treated.

202 MOHAMMEDAN THEORIES OF FINANCE

fifths so divided might be considered as an advance pay-
ment on the pay of the soldiers and a supplement to the
military stipends provided by the state.

Finally, in the conclusion, an analysis of the Mohamme-
dan theories of finance is given. In this analysis, the
theories are taken entirely at their face value and the deeper
philosophy underlying them is not discussed.

CHAPTER II
THE ZAKAT TAXES l

SECTION I

General Principles

Zakat literally means growth and increase (as in the
phrase zaka al-zar' , the crop grew), and, according to some,
purity (as in the verse qad aflaha man tazakka? i. e., verily
the pure ones prospered). The tax has been named zakat
with respect to the first meaning of the word, because
its giving leads to increase of property in this world and
growth of religious merit (thawab) in the next; and with
respect to the second meaning, because its payment purifies
from sins. God said : " Take from their property alms
(sadaqah) in order thus to purify them (tusakki-him)
[from their sins] ".*

Technically zakat is defined by the Hanifite doctors as
"the giving4 (tamllk), as an act of piety, of a legally

1 Majma', p. 157; Quduri, p. 20; Mabsut, p. 149; Kasani, p. 2; Hiddyah,
Path, Kifdyah, and 'Indyah, p. 112; Durar, p. 112; Durr, p. 131; Jam?,
p. 297; 'Alamkiriyyah, p. 239; Bahr, p. 216; Umm, p. 2; Wajlz, p. 79;
al-Fatdwa al-Kubra, vol. ii, p. 32; Mawardi, p. 195; Minhdj, p. 228;
Ansari, p. 338; Zarqani, vol. ii, p. 41 ; Ibn Rushd, M., p. 200; Ibn Rushd,
B., p. 225; Mudawwanah, p. 2; Muwattd, p. 103; Kharashi, p. 51.

2 Koran, chap. 87, verse 14.

3 Ibid., chap. 9, verse 104.

4 "Giving" is used here in the sense of transferring the ownership
of a thing.

203

204 MOHAMMEDAN THEORIES OF FINANCE

(shar'a) stated portion of one's property to a poor Mos-
lem who is not of the Hashim family or their clients
(mawla), in such a way as to preclude for the giver any
sort of benefit." * Zakat also means the thing so given.
Sadaqah is another name for zakat. The general usage,
however, is to consider sadaqah as a more generic term
applying to the alms whose payment is a fard (obliga-
tion), as well as to the alms the giving of which is en-
tirely voluntary (tatawwu'). In other words, while every
zakat is also sadaqah, only the sadaqah which is a fard is
zakat. Al-Shafi'i and al-Mawardi, on the other hand, claim
that there is no distinction between the two terms and that
they both denote the same thing.2

The giving of zakat by Moslems is a fard based on evi-
dence found in the Koran, the sunnah, the ijma' and in
reason. In the Koran zakat is set down as the third faith
(thalithat al-tman) as becomes evident from these divine
words: "and if they [i. e., the infidels] have repented and
performed the prayers and paid the zakat , they are your
brethren in religion." 3

In the sunnah, zakat is reckoned as one of the five "pillars
of faith ". The Prophet said : " Islam has been built on
five [things], namely, testimony that there is no God but
the God, the performance of the prayers, the giving of
zakat , the fast during the month of Rajnadan, and the pil-
grimage to Mecca when one can afford it." 4

It is justified in the ijma' ' , because the entire Mohamme-
dan community has agreed upon zakat 's being a fard.5

Finally, it is supported by reason, because the giving of

1 Majma', p. 157.

1 For details see Part III.

3 Koran, chap. 9, verse II.

4 Mabsut. p. 149. ' Kasani, p. 3.

THE ZAKAT TAXES 205

zakat is an assistance to the poor and enables them to per-
form their religious obligations — to help perform a fard is
itself a fard — and because the giving of zakat purifies one's
morals by inculcating habits of generosity and greathearted-
ness and by eradicating those of niggardliness, since it is a
fact that possession of property leads one to greed.1 Ac-
cording to the Mulut, failure to believe that zakat is a fard
entails unbelief (kufr), and refusal to practice it involves
the death penalty.2

The cause (sabab) of zakat's being a wajib 3 is the pos-
session in full ownership (milk tamm) of a productive
(nami) nisab (minimum) of property. This is based on the
divine words : "Take from their properties sadaqah". "Prop-
erty is a cause of zakat not per se, but in so far as it con-
tributes to the wealthiness of the owner, for the Prophet
said to Mu'adh : ' Tell them that God has prescribed for
them sadaqah, to be taken from the rich among them in
order to be given to their poor '. But wealthiness results
only from the possession of a definite quantity of wealth,

1 Ibid. The Bahr (p. 217) objects to the sunnah, and especially to
reason being invoked as evidence for sakdt's being a fard.

*'AlaMkiriyyah, p. 239.

8 It will be noticed that while in the previous paragraph the giving of
zakdt was referred to as a fard, here the cause of sakdt's being a wdjib
only is discussed. Most of the Hanifite texts follow this usage. The
commentators explain the discrepancy in two ways: (i) The giving of
zakdt is called a fard because it is based on positive evidence (dalit
qat'i). On the other hand, it is spoken of the cause of sakdt's being
a wdjib only, because in certain respects it is based on presumptive
evidence alone (dalll sanni). (Majma', p. 157; 'Indyah, p. 113.) (2)
In this connection wdjib is used by extension in the sense of fard.
(Hiddyah, p. 112; Kifdyah, p. 112; Bahr, p. 217; 'Indyah, p. 213.) Cer-
tain texts use the word fard in both instances. (Durr, p. 132; Kasani,
p. 4.) However, this difference of usage affects only the obligation of
believing in sakdt but not of practising it, since in engendering an obli-
gation for doing a thing the fard and wdjib are on a par. (See Part I.)

206 MOHAMMEDAN THEORIES OF FINANCE

and this quantity is the nisab." However, the nisab be-
comes a cause only by virtue of productivity, for zakat is a
contribution set apart from superfluous property, as may be
inferred from this passage in the Koran :2 " And they
shall ask you as to what they shall bestow in alms (yunfi-
quna). Say, 'The superfluous'."3 And so the cause of
zakat is the productive nisab, and the zakat is, therefore,
referred to the nisab, as, for example, when we say, " the
zakat of cattle ". Consequently, when the nisab is doubled
the zakat is also doubled.

Productivity (numa') is either real (tahqlqi), as in pro-
creation and trade, or hypothetical (taqdiri), as, for ex-
ample, in the case where productivity has been possible,
though not actual, in that the property has been in the pos-
session of the owner or his agent.4 Productivity, real or
hypothetical, is considered to have existed whenever one of
the following three cases is present : ( I ) when property is
gold or silver (naqdan or thaman) ; (2) when animals are
pastured (sawm) ; (3) when property is intended for trade
(niyyat al-tijarah).5 According to the 'Alamkmyyah*
productivity, both real and hypothetical, is further classified
into natural (khilqi) and artificial (ffli). The first is found
in gold and silver, which have been created for trade and in
themselves are not fit for the satisfaction of wants. Gold
and silver pay zakat whether or not they are intended for
trade or personal consumption. Artificial productivity, on
the other hand, is found in other than gold and silver,

1 Mabsut, p. 149.

* Chap. 2, verse 217.
8 Ibid., p. 150.

4 Majnta', p. 158.

* Jdmi', p. 299.

* P. 244. Zaila'i, p. 256.

THE ZAKAT TAXES 207

whenever there is intention of trade or of pasture, provided
the intention in each case is borne out by an act of trade
or pasture.

Besides being productive, the nisab must also be owned
in full ownership (milk tamm), that is, ownership (milk)
combined with possession (yad). Consequently, mere pos-
session of property does not subject it to zakat. " For the
state of wealthiness does not exist without ownership
( milk), and the productive property was a cause for zakat
only by virtue of contributing to the wealthiness of the
owner, and when it fails to do so it is no longer a cause [of
zakat} ." According to Abu Hanifah, neither does owner-
ship without possession subject to zakat 2 since the nisab
could not have then been productive. Consequently the
wife is not subject to zakat on her marriage price (sidaq)
before she has received it, although she owns it.

The nisab, furthermore, must be over and above what is
necessary for the satisfaction of the primary necessities of
life (hajah asliyyah), because property destined for such
necessities is, as it were, non-existent.

The nisab, finally, must be free of debt subject to demand
of payment by one's fellow-men ('ibad), — whether the debt
be owing to them or to God, — as distinguished from debts
which are not subject to demand on payment by one's fel-
low-men, such as debts of vow or sadaqat al-fitr* and which,
therefore, do not oppose the obligation of zakat. Accord-

1 Mabstt, p. 164.

• Path, p. 113; cf. 'Alamkiriyyah, pp. 241, 245.

8 Sadaqat al-fitr is a kind of sadaqah (also called zakat al-fip) be-
stowed upon the poor on the festival of breaking Lent. Its chief dif-
ference from zakdt is that, while its settlement is morally just as
obligatory (since it is a wdjib), it does not come under state control
and lies entirely with the person himself. The zakdt al-filr is also
called zakdt al-ru'iis (zakdt of heads) in distinction from the xakdt
with which we are here concerned and which strikes property.

208 MOHAMMEDAN THEORIES OF FINANCE

ing to al-Shafi'i,1 indebtedness does not affect the obliga-
tion of zakat. According to one Shafiite view, however,
indebtedness opposes zakat in the case of non-apparent prop-
erty. Finally, according to the Malikites,2 indebtedness ex-
empts (yusqit3) from the zakat of gold and silver ('ayn)
and the articles of trade, though not of crops, cattle, and
mines. The argument of al-Shafi'i is that the cause of zakat
is the ownership of a complete nisab and the debtor possesses
one. Moreover, the debt of a free man attaches to his per-
son and does not encumber his property which he may
handle as he pleases and so make productive. The Hanifite
argument is as follows: The calif 'Uthman said in his
address in the mosque during the month of Ramadan : "Be-
hold, the month of your zakat has come. Whoever has
property and debts, let him deduct from what he owns what
he owes and pay zakat for the remaining property," * and
none of the Companions blamed 'Uthman for his action,
and so it was an ijma' on their part to the effect that there
is no zakat on the amount covered by debt. Besides, the
debtor is really a poor man and the zakat is paid by the rich
alone. Furthermore, the debtor deserves help himself, and
there is no reason in taking from him as a taxpayer, for in-
stance, a sheep, and then returning the same to him as a
beneficiary of the tax. Finally, it cannot even be properly
said that the debtor completely owns the nisab, since it is
affected by the right of the creditor.

1 Hiddyah, p. 118; Umm, p. 22; Minhdj, p. 261.
1 Kharashi, p. 106; Dardir, p. 124.

8 The word yusqit means to cause to lapse, and if its use was ad-
vised it would imply that indebtedness does not oppose the operation
of zakdt in the first place. The Hanifites and Shafiites, however, ex-
pressly stand for this last meaning by using the expression yamna'u
wujubaha, i. e., the debt prevents the sakdt from becoming due.

4 Mabsut, p. 160.

THE ZAKAT TAXES 209

There has been dispute as to whether a debt of zakat

should constitute a cause of exemption. According to
Zufar, a debt of zakat is like a debt of vow or kafffirah,1
and does not exempt from zakat. In fact, it is canceled in
case of death before payment, and therefore is not really a
debt. Al-Balkhi establishes a distinction between the sakat
due on " apparent " property and that due on " non-appar-
ent " property, holding that only the zakat due on " appar-
ent " property exempts from zakat, because, according to
him, only the latter kind of zakat is subject to demand of
payment on the part of the public collector. Al-Sarakhsi
takes exception and claims that the zakat due on both
" apparent " and " non-apparent " property is alike subject
to demand of payment. He contends that, during the time
of the Prophet and the two califs after him, the zakat of
" non-apparent " as well as of " apparent " property was
collected by the public collectors, and that the third calif
'Uthman, in order to remove from the taxpayers the incon-
venience and trouble attendant on the investigation of their
" non-apparent " properties by evil collectors, limited the
jurisdiction of the public collectors to the " apparent " prop-
erty and delegated the right of collecting the zakat of
" non-apparent " property to the property owners them-
selves ; that, therefore, the zakat of "non-apparent" property
is still subject to demand of payment (though now by the
property owners themselves instead of by the public col-
lectors) and that consequently, the zakat on "non-apparent"
property, too, is a cause of exemption. On the other hand,
according to Abu Yusuf , a zakat debt is cause of exemption
if the property on which the zakat is due is still intact, but
it is not so, if the property has been destroyed, because in

1 Kaffdrah is a financial expiation for such sin as the breaking of
fast or an oath.

2io MOHAMMEDAN THEORIES OF FINANCE

case the property is intact, there is always a possibility that
the owner may pass a public collector with that property
and so be subject to demand of payment as regards its
zakat. It is stated in the Mabsut that, when Abu Yusuf
was called upon to show cause for not assenting to Zufar's
view, he replied, " What is my cause against a man who
makes one pay 400 dirhams of zakat for 200 dirhams of
property !", meaning thereby that according to Zufar a per-
son owning 200 dirhams would have to pay after 80 years
400 dirhams of zakat, if he had failed to pay the zakat for
each year at the end of the same. According to the view
which considers a zakat debt as a cause of exemption, the
zakat due on the 200 dirhams in question would be only one
year's zakat, namely 5 dirhams, since after the falling due
of the first year's zakat the 200 dirhams would be affected
with the zakat debt of 5 dirhams for the first year, and the
second year no zakat would be due, the condition of an un-
obstructed nisab of 200 dirhams being absent.1 Abu Ham-
fah and Muhammad Ibn al-Hasan hold the same view as al-
Sarakhsi.

Al-Shafi'i,2 with respect to sawaim animals, says that a
previous debt of zakat on them exempts from zakat, but he
recommends that advantage should not be taken of this ex-
emption. Finally, according to the Malikites,8 a debt of
zakat, like other debts, exempts from the zakat of gold and
silver and the articles of trade only.

A debt of kharai is like other debts, although according
to some this is true only in case the kharaj was justified.
As regards tithe debts, if the crop remains intact, the zakat
is not affected by it, since the tithe debt attaches to the crop.
Again, if the crop is accidentally destroyed, the zakat is not

1 Mabsiit, p. 169. J Umm, p. 15.

* Kharashi, p. 106; Dardir, p. 124.

THE ZAKAT TAXES 2II

affected, since the tithe debt has in that case lapsed. If,
however, the crop was destroyed wilfully, the tithe thereby
becomes a personal debt and in such case like other debts
exempts from zakat.1

According to Abu Hanifah, Abu Yusuf, and Muhammad
Ibn Al-Hasan, a debt must have been incurred during the
year, but not after it, in order to constitute a cause of ex-
emption as regards the zakat of that year.2 As regards debts
incurred during the year but since discharged; according
to Muhammad Ibn al-Hasan, and, in the opinion of Ibn
'Abidm,3 according to Zufar, they exempt from zakat
and the year begins anew ; but according to Abu Yusuf, and,
in the opinion of Ibn 'Abidin, also according to Abu Hani-
fah and Muhammad, such debts result only in a decrease of
the nisab, not its total disappearance, and consequently the
zakat is due when the year is complete. According to the
Bahr* debts incurred as a result of suretyship (kaftflah)
are like other debts.

A debt is a cause of exemption whether or not it has
fallen due.5 Consequently the marriage price (mahr) stipu-
lated by the husband in favor of his wife exempts him from
zakat even if the price is to fall due at a future date (mu'aj-
jal). Some differ on the ground that such debts are not
ordinarily demanded. Others hold that they should exempt
only in case the husband really intends to settle them when
demanded to do so by his wife. Some say that only debts
which have fallen due justify exemption.' The author of
the Jdmi( approves of this last view.

1 Jdmf, p. 300; 'Alantkiriyyah, p. 242; Bahr, p. 220.

* 'Alantkiriyyah, p. 243.

* Minbah, p. 220. * P. 220.
6 'Alomkiriyyah, p. 242; Bahr, p. 220.

6 /ami' p. 300.

212

MOHAMMEDAN THEORIES OF FINANCE

When a person owns several nisabs in several kinds of
pioperty at the same time that he owes a debt, he makes
allowance for the debt as follows. He applies the debt first
against the dirhams and dinars (the gold and silver cur-
rency), and, if there remains a surplus of debt, against the
articles of trade, and if there is still a surplus, against the
sawaim animals, beginning with the kind of sawa'im ani-
mals that is subject to the least amount of zakat, unless they
are all subject to an equal amount of zakat, in which case
he may first apply the surplus to whichever kind he pleases.
The above is true when the collector has called in person
for the collection of the zakat t for in the contrary case the
property owner may apply the debt against any property he
chooses, since he is liable to zakat equally with respect to
every kind of property. This is not true, however, of the
collector, for he has jurisdiction over the sawaim animals
alone, and, therefore, he applies the debt against the cur-
rency and collects the zakat of the animals.1

According to the accepted Hanifite view the debt is ap-
plied against the property which is subject to zakat and
not against property which is destined for the satisfaction
of necessities and is consequently exempt from zakat. How-
ever, according to Zufar, it is applied to property of its
own genus. Thus a person possessing 200 dirhams, a slave
and a quantity of borrowed grain, and owing a slave, pays
no zakat because the debt is applied to the dirhams. Ac-
cording to Zufar the debts of grain and slave are applied to
the grain and slave he possesses and a zakat is due on the
dirhams. Likewise, a person owning a house, a personal
slave worth 10,000 dirhams and i,ooo dirhams pays no
zakat if he also owes 1,000 dirhams, for the house and slave,
far from satisfying his needs, on the contrary, increase

1 'Ahmkiriyyah, p. 244; Mabs&i, p. 184.

THE ZAKAT TAXES 213

them.1 According to the Malikites,2 a debt may be applied
to gold and silver and the articles of trade with a view to
canceling or reducing their zakat only if the zakat payer
does not possess other appropriate property against which
he may apply the debt in question. By appropriate property
here is meant gold or silver extracted from a mine, tithable
grain, collectible claims already accrued, or, finally, com-
modities (fard) which he has had for a year and which may
legally be sold for the satisfaction of debts, such as cloth-
ing, cattle, riding beasts, books of law; but not clothing
destined for his person or a house destined for his resi-
dence, unless they exceed his needs. Thus a person having
forty dinars and a commodity worth twenty dinars and
owing forty dinars pays zakat only for twenty dinars if at
the time the zakat falls due he has had that commodity for
at least a year and it is worth twenty dinars.

The conditions of zakat's being a wajib are the follow-
ing:

(1) Reason (faql) and maturity (bulug), for there can
be no responsibility without them.

(2) State of Islam, because the payment of zakat is an
act of worship and as such it can validly be performed only
by a Moslem.

(3) Freedom of person (hurriyyah), in order that the
provision in the definition of zakat concerning the trans-
ferring of ownership (tamlik) by the zakat payer to the
zakat beneficiary may be realized, for the slave can not
own any property.

Exemptions. As a result of failure in one or more of
the above requirements, the following are exempt from
zakat :

(i) The Mukatab,3 because though he enjoys the right

l'Alamkiriyyah, pp. 243, 244. * Kharashi, p. 107; Dardir, p. 124.
1 The mukdtab is the slave who obtained from his master the privi-

MOHAMMEDAN THEORIES OF FINANCE

to dispose of (tasarruf) his goods, he does not completely
own them.

(2) The debtor subject to demand of payment of his
debt on the part of a fellow-man, to the amount of his in-
debtedness, provided the debt is of the kind above de-
scribed. Such fellow-man may be the creditor, the imam x
as regards the zakat of " apparent " property, or the debtor
himself, as regards the zakat of his " non-apparent " prop-
erty, such as gold and silver. If, however, the debt is not
subject to demand of payment and refusal to pay it does
not involve imprisonment, it does not result in exemption.
A debt of vow is of this last kind.2

(3) Dimar property, which has been recovered, for past
years. Dimar is property which has slipped out of one's
possession with little chance of recovery, such as fugitive
or stray slaves. Dimar property is exempt from sakat ac-
cording to Abu Hanlfah, Abu Yusuf and Muhammad Ibn
Al-Hasan ('indahum), because the condition of productivity
is absent. According to Zufar and al-Shafi'i,3 however,
dimar property is subject to sakat for past years, when re-
covered, because upon its recovery the cause of zakat,
namely a complete nisab, has come into existence. They
base their view on the analogy of the traveler. The others
invoke the hadlth of 'AH, who said : " There is no zakat on
dimar property " ; and as regards the analogy of the trav-
eler, they claim that the case is different, because he can
still make his property produce through an agent. Fin-

lege of manumission on payment of a fixed price. Such slaves have
the right to engage in trade and buy and sell in order to earn the
price of their freedom.

1 That is, the head of the Moslem state.

s /ami', p. 300.

* Umm, p. 44; Minhdj, p. 260.

THE ZAKAT TAXES 215

ally, according to the Malikites,1 dimar property, provided
it is gold or silver, when recovered, pays zakat for one
year only, even if meanwhile many years should have
passed. If it is cattle, then according to the prevalent
view the zakat is paid for all past years. As regards trees
this is always the case. The following, when recovered, are
examples of dimar property: slaves — lost, fugitive, or gone
astray; property fallen into the sea; property usurped,
when there is no evidence to prove that fact; prop-
erty buried in the country, in a place since forgotten;
property seized tyrannically by the sultan; claims pub-
licly disclaimed by the debtor with no evidence to
disprove him. However, claims acknowledged by a
debtor who is well-to-do, or even in financial diffi-
culties, or who has been declared by a judge insolvent
(muf alias), are not considered dimar property, because
there is yet a possibility of recovering them. In fact, as re-
gards the debtor who is in difficulties, he may still recover
his fortune, and as regards the case of the debtor who has
been declared insolvent, according to Abu Hanifah, such
declaration is not valid and debts owed by the insolvent are
not lost considering that wealth flows back and forth. Mu-
hammad Ibn al-Hasan has dissented from Abu Hanifah as
regards the validity of declaring a debtor insolvent, and so
he has considered claims owed by an insolvent as dimar.
Abu Yiisuf , while agreeing with Muhammad as regards the
validity of the judgment of insolvency, followed Abu Hani-
fah in not considering the debts of the insolvent as dimar
property. The motive in their case was to guard the inter-
ests of the poor who are the chief beneficiaries of zakat. Like-
wise, according to most of the leading doctors (mashtfikh),
claims denied by the debtor, if they have been proved by
evidence, are not dimar. However, according to Muham-

1 Khalil, p. 41 ; Mudaurwanah, p. 98; Kharashi, p. 84.

2i6 MOHAMMEDAN THEORIES OF FINANCE

mad Ibn al-Hasan they are dimar and are not subject to
zakat, because every judge is not just and all evidence is
not reliable. Similarly, claims concerning the validity of
which a judge has personal information are not dimar.
However, this is not true at the present time, because the
judges now may no longer render judgment on the basis of
personal information they may happen to possess. Finally,
property which has been buried in a place answering the
description of hirz? such as the house or shop of the owner,
is not dimar even if its exact location has since been for-
gotten, because it may be recovered by being dug up. Ac-
cording to the Bohr this is also true of property buried in
another's house (hirz).z The Hanifite doctors have dif-
fered as regards property buried in the owner's garden
(karm) or field. Some hold that such property is not dimar
considering that it may be recovered by digging. Others
take the opposite view because of the difficulty of digging
up the entire garden or field ; they claim that for this reason
also property buried in a large house would be dimar.

(4) Also, for want of productivity, or because of being
destined for primary necessities, or for both reasons, the
following articles: dwelling-houses; wearing apparel;
household utensils ; slaves employed as servants ; riding ani-
mals; arms kept for use; food used by one's self and fam-
ily; articles of adornment, if not made of gold and silver;
gems, pearls, rubies, hyacinths, emeralds, and the like ; coins
of other than gold and silver, if intended for personal ex-
penditure; books and tools. All the preceding articles are
exempt from zakat even when they are not destined for
primary necessities, and are not actually used — for instance,
even when the tools are not owned by people who use them,

1 Hire technically means a place where property is customarily kept,
such as one's house, shop, tent, or person.
* 'Alamkiriyyah, p. 245.

THE ZAKAT TAXES 2l?

provided, however, they are not intended for trade.1 It
must be remarked that the tools (alat) referred to above
are the tools which render a use without leaving a trace in
the thing on which they have been used. If, however, they
do leave a trace in the thing, as is the case with yellow dye
or saffron bought by a dyer in order to be used for the
dyeing of people's clothing in consideration of a price (ajr),
they are then subject to zakat, provided their value amounts
to a nisab and a year has passed from the time of their pur-
chase. Likewise subject to zakat is every article (fayn)
bought for use in the process of work, if a trace of it re-
mains in the object worked upon. Gall-nut and grease used
for the dressing of leather are of this category. No zakat
is due on instruments, however, if, as in the case of soap
and potash, no trace of them is left.2

( 5 ) Property of minors and the insane, because, in their
case, the conditions of maturity and reason are wanting;
and of non-Moslems, because the condition of Islam is
wanting. However, according to the Malikites (especially
as regards cattle and crops) and also according to al-Sha'fii,*
minors and the insane are subject to zakat. Al-SharVi's
ground is that zakat is an obligation connected with prop-
erty, irrespective of ownership. The Hanifites, on the other
hand, reply that zakat is an act of worship and therefore
incumbent only on those who can exercise an option in its
discharge.4

1 The reason for this is that zakat is due on property other than
sawd'im animals or gold and silver only when that property is in-
tended for trade. Consequently an amount of property that is not
intended for trade does not pay sakdt, merely because it is not destined
for primary necessities, no matter how large such amount may be.
There is, however, a difference in the disbursement of sakdt. There,
the possession by a person of a nifdb of books bars him from having a
share in the zakdt unless he needs to use those books. Durar, p. 113.

1 'Alamkiriyyah, p. 242.

1 Wajiz, p. 87. *Hiddyah, p. 115.

2i8 MOHAMMEDAN THEORIES OF FINANCE

Insanity is of two kinds, original (asli) and acquired
('aridi). It is original, if a person is insane when he
comes of age ; it is acquired, if he goes insane after coming
of age. There is no difference between the two kinds of in-
sanity, except that in the original, according to Abu Hani-
fah, the year begins from the date of recovery. Further-
more, according to Abu Hanifah, the zakat is due on the
insane' s property if he has had a lucid interval during the
year, no matter how short the interval was. According to
Abu Yusuf, however, the lucid interval must be at least
more than half of the year, since otherwise insanity would
have had predominated over sanity.1

The condition of the payment of zakat being a wajib 2
is the lapse of a year (hawalan al-hawl) over the nisdb of
productive property while it is in the proprietor's full pos-
session, provided the conditions of age, freedom, etc., are
fulfilled. In other words, if one possesses in full ownership
for a year articles coming under the description of thaman
or sawa'im, or articles that he intended to trade in for profit,
he pays zakat for those articles at the end of the year, re-
gardless of whether or not they have been actually pro-
ductive.

The lapse of a year is necessary, "because time is indis-
pensable for productivity to materialize — this time has been
fixed by the sharlah at one year according to the hadlth:
' No zakat is due on property before there elapses over it a
year ', and because productivity during a year is possible "
by virtue of the succession of seasons in the course of which
prices usually vary.8

1 'Indyah, p. 117.

1 This condition must not be confused with the condition of " the
zakdt per se " being a wdjib, since the zakat per se may have become a
wdjib without its payment being due, owing to the fact that the con-
dition of payment is not yet realized.

8 Hiddyah, p. 113.

THE ZAKAT TAXES 2ig

According to the Malikites,1 in conformity with the prac-
tice of Medina, in cattle the obligation of zakat does not
arise upon the mere lapse of the year but only after the ar-
rival of the collectors, provided there are such who can
reach the cattle owners.

With respect to the requirement of the lapse of a year,
it must be borne in mind that nothing must supervene dur-
ing the year which in the technical language is called " dis-
solution " of the nisab, or, what is the same, dissolution of
the year (inqita' al-hawl), as in that case there would have
to elapse a new year before zakat became due on the new
nisab. Thus according to al-Sarakhsi if one should
sell his nisab of sawaim animals just one day before the
completion of the year, whether the price was sawaim ani-
mals of the same genus (jins), or whether it was wealth
of another genus, such as gold and silver currency, the year
would be dissolved and another year would have to elapse
over the price before a zakat was due on it. According to
Zufar, the year is not dissolved if the price was sawaim
animals of the same genus. Al-Shafi'i, on the other hand,
claims that the year is not dissolved in either case, because,
as he argues, the wealth of the owner has not been affected
by the transaction, just as this is the case in the exchange
of trade articles against one another. Zufar argues that
when the price is of the same genus as the animals sold, the
provisions concerning the original animals continue in force
as regards their price. Al-Sarakhsi, on the other hand, re-
marks that the sawaim animals are subject to zakat, in and
of themselves ('ayn), and not on account of their value as
is the case with the articles of trade. Indeed, the nisab of
the sarva'im animals, as well as their productivity, is reck-
oned with respect to the physical identity ('ayn) of the

1 Dardir, p. 115; Kharashi, p. 66.

220 MOHAMMEDAN THEORIES OF FINANCE

animals, not their commercial value, and so when they are
sold the year is dissolved ; for their price, even though it be
sawa'im animals of the same genus, is no longer the very
same animals. In articles of trade the case is different,
since there the object in view is not the physical identity of
the thing but its value, which is not affected by exchange.
Moreover, an exchange in articles of trade is conducive
to the realization of the object of trade, namely profit. An
exchange in sawaim animals, on the contrary, is subversive
of the object in owning sawa'im animals — namely, keeping
them in permanent possession for their physical produce.
The view above ascribed to al-Shafi'i is his older view (ii
'l-qadim), namely, the view he held during his stay in 'Iraq
before his departure to Egypt. The view expressed in the
Umm * apparently is his more "recent" (fi'l'jadid) view,
since it is to the contrary effect, namely, that if a person ex-
changes his sawaim animals against other animals of the
same genus or against other kinds of wealth, such as gold
or silver, he does not pay zakat on the animals he sold if
the sale occurred before the completion of the year, and he
pays zakat on the price he received in exchange only after
the lapse of a year. However, according to the Malikites,*
exchange (ibdal) does not dissolve the year if made with
the purpose of escaping the zakat — for instance, if made
within a month from the completion of the year.

Must the nisab be complete every moment through the
entire year or may it vary to a certain extent without re-
sulting in the dissolution of the year? According to al-
Sarakhsi, the nisab must be complete at least in the begin-
ning and at the end of the year, and furthermore, at no
time must it have entirely disappeared (inqittf). Accord-

1 P. 20 ; cf. Minhdj, p. 236.

* Kharashi, 'Adawi, p. 58; cf. Mudawwanah, p. 81.

THE ZAKAT TAXES 22l

ing to Zufar, the nisab must be complete throughout the
entire year, and, on the other hand, in al-ShafiTs opinion,
this is only true of the sawaim animals and of gold and
silver (naqd), while in the case of articles of trade it is suf-
ficient if the nisab is complete at the end of the year only.
The argument of Zufar is that there is no difference be-
tween the different periods of the year and that the condi-
tion of a complete nisab must be present at every period of
the year. Al-Shafi'i joins with Zufar in his argument as
regards the sawaim animals and admits that analogy would
require that this should be true of the articles of trade also,
but remarks that the latter pay zakat on the basis of their
value, which it is well-nigh impossible to ascertain for every
day in the year. Therefore, for the sake of convenience, he
requires that this condition should be met only at the time
the zakat falls due, that is, at the end of the year. Al-Sar-
akhsi, however, argues that a complete nisab is required in
order that the state of wealthiness may be realized. Con-
sequently, it is necessary at the beginning of the year,
in order that the year may begin to run, and at the end
of the year, in order that the zakat may fall due; but it is
not necessary that the nisab should be complete in the mean-
while, provided it does not entirely disappear. The analogy
of sawa'im animals (which cease to be sawa'im if in the
middle of the year they are turned into beasts of burden),
invoked by the opponents is not valid, because in that case
the nisab has entirely disappeared ; for as soon as the ani-
mals have been used as beasts of burden they have forth-
with ceased to be sawaim animals, but we have not allowed
the destruction of the entire nisab but only its decrease.
Finally, as regards the inconvenience of the appraisal of
the articles of trade which al-Shafi'i alleges, it is not any
harder to appraise the articles at the beginning of the year
than it is at the end, and there is no great inconvenience in

222 MOHAMMEDAN THEORIES OF FINANCE

doing so twice a year, at the beginning as well as at the end
of it.1 Consequently, if a nisab of grape juice should turn
into wine and then into vinegar before the completion of
the year, the year would be dissolved with respect to the
grape juice and a new year would have to elapse before
the vinegar would become subject to a year's zakat. If,
however, a nisab of sheep should perish during the year
but the wool of the same was worth 200 dirhams, the year
would not be dissolved, considering that the nisab was not
entirely destroyed. Indebtedness, even when it covers the
entire nisab, does not dissolve the year, although Zufar
holds the contrary view.2

Property acquired (istifadah) in the course of the year
is added to the nisab of property already in existence and
their zakat is paid together when the year is complete for
the nisab in question. Thus a person who has 200 dirhams
and acquires 100 more during the year, pays zakat for 300
dirhams at the end of the year. If, however, the acquisi-
tion is made after the completion of the year, or the prop-
erty already possessed is not of nisab quantity, or, finally,
the two properties in question are not of the same genus,
the above rule does not apply and they are treated separ-
ately.*

According to al-Shafi'i additional property acquired dur-
ing the year is not added to the original nisab, because it is
independent in its ownership and should be independent also
in its obligation of zakat } unless the increment consists in

1 Mabstt, p. 172.

* Majma', p. 170.

It goes without saying that if the indebtedness continues through
the year the zakdt does not fall due, because the ni$db must be free of
debt. We are concerned here with the indebtedness that disappears
before the completion of the year. Such indebtedness does not dis-
solve the year.

3 Jdmi', p. 316; Majma', p. 170; Bohr, p. 239.

THE ZAKAT TAXES

223

offspring or in a profit (ribh) which has not been liquidated,
such as an increase in price which has not been turned into
cash (lam yanidd). For the profit as well as the offspring
are dependent on the original nisab as regards their owner-
ship and must be dependent on it also as regards the obli-
gation that attaches to their ownership. Then, too, it is
difficult to follow the rise and fall of prices. The Hani-
fites reply that the reason why the offspring and profits are
added to the original property is their homogeneity, since
in their case it is difficult to single out the increment from
the original property ; and this is also true of every acquisi-
tion which is of the same genus as the original property.1

It follows from the above that if one should have a nisab
of camels and acquire more camels during the year through
purchase or gift or otherwise, according to the Hanifites,
he adds them together and pays zakat for the whole when
the year is complete; but according to the Shafiites, he can
do so only if the increment of camels acquired is an off-
spring of, or an unliquidated profit from, the camels for-
merly owned — otherwise they are treated separately. Ac-
cording to the Path,2 in Abu Hanifah's opinion, the price
of animals whose zakat was paid is not added to a nisab of
gold and silver already owned, as this would result in double
taxation. In Abu Yusuf and Muhammad Ibn al-Hasan's
opinions, however, such price is added, since the reason for
so doing, homogeneity, is present. All three of them have
agreed that the price of land or of its produce, on which
the tithe has been paid, is added to the nisab of gold and
silver already possessed.

Finally, according to the Malikites, four cases are dis-
tinguished in the acquisition of additional property — two

1 Hiddyah, p. 148; Minhdj, pp. 236, 251 ; Anjari, pp. 352, 383.
1 P. 148.

224 MOHAMMEDAN THEORIES OF FINANCE

for the case of animals and two for other cases. ( i ) The
case of animals: (a) The additional animals are acquired
either as a result of procreation or by the exchange of the
original animals against a larger number of animals of the
same species, as of camels for camels. In either case the
additional animals pay zakat on the basis of the year of the
original animals, and it is not necessary that the latter
should be of nisab quantity, (b) The additional animals
are acquired in some other way. In such case they
pay zakat with the original animals when the latter's
year is complete, even if acquired one day before the com-
pletion of that year, provided they are of the same genus,
and provided the original animals are of at least a nisab
quantity. For should they be fewer, the year begins from
the day the nisab is completed.1 (2) The case of other
property: (a) The increment consists in profit (ribh) as,
for example, from trade, or in the rental of a house or of a
slave leased for silver or gold coins for profit. The profit
or the rental received is added to the original value, and
pays zakat with it, when its year is complete. For instance,
if one starting with a capital of one dinar should earn by
the end of the year nineteen more, he would pay zakat on
twenty dinars, without having to wait for the completion of
a year with respect to the nineteen dinars. Or if he should
rent with that dinar an animal and by re-renting it make
nineteen dinars of rental, a day before the end of the year,
the nineteen dinars of rental are added to the original value
of one dinar, and the zakat of the twenty dinars so result-
ing is paid when a year has passed from the possession of
the original one dinar, (b) The increment consists in
what is called fa'idah, i. e., silver and gold (currency) ac-
quired in some other way. Such increment pays zakat

1 Dardir, p. 112; Kharashi, p. 52; Ibn Rushd, B., p. 247.

THE ZAKAT TAXES 22$

after the completion of a year from its date of acquisition.
When the increment is less than a nisab quantity, it is
added to later ones, and the year for the whole begins from
the date of the completion of the nisab. Examples of this
increment are gifts and other fortuitous acquisitions, the
price of property not subject to zakat, rental of trade
articles, etc.1

In reckoning up the nisab, the rule is to add together
only articles which belong in the same genus (jins). As
the zakat of the sawaim animals attaches to their physical
identity and not to their commercial value, each physical
genus constitutes a separte legal genus, and therefore it is
not allowed by ijma' , for instance, in computing the nisab
of camels, to make up the shortage by adding together with
the camels sheep or cattle.2 The articles of trade, on the
other hand, are subject to zakat in virtue of their value, and
therefore with respect to zakat they constitute one single
genus. Consequently the different kinds of trade articles
may be added together in order to complete the nisab.
Furthermore, according to Abu Hanifah, the nisab of either
gold or silver may be completed by the other or even by
articles of trade and vice versa. However, according to his
two disciples, although the nisab of gold or silver may be
completed by adding articles of trade, the converse is not
allowed, because in their opinion gold and silver pay zakat
in terms of weight and therefore may not be added to
articles of trade which pay zakat in terms of value.3 Thus a
bushel of wheat and five mithqals of gold, according to Abu
Hanifah, pay zakat if their total value amounts to two hun-
dred dirhams, but according to his two disciples they do
not.

1 Dardir, p. 119; Kharashi, p. 87.
1 Majnia', p. 170, 1. 7.
5 /ami', p. 317.

226 MOHAMMEDAN THEORIES OF FINANCE

According to al-Shafi'i,1 gold and silver are distinct gen-
era and may not be added together to complete the nisab of
either. However, the nisab of articles of trade may be com-
pleted by such coin (gold or silver) as may legally be used
for their appraisal, the year for the whole being reckoned
with respect to the coin only. Thus if a person hav-
ing one hundred dirhams buys with fifty an article of
trade, and should such article at the end of the year be
worth one hundred and fifty, the fifty dirhams are added
to them and a zakat of five dirhams becomes due on the
two. According to the Malikites,2 gold and silver may be
added together.

According to Abu Hanifah gold and silver are added
together in terms of value. According to Abu Yusuf and
Muhammad Ibn al-Hasan, however, they are added in terms
of weight. Consequently, if a person has 10 dinars worth
1 50 dirhams and also 50 dirhams, according to Abu Hani-
fah he pays zakat because their value amounts to 200 dir-
hams, i. e., a full nisab ; but according to the two disciples
he does not pay zakat because their weight falls short of a
nisab. Conversely, if a person has 5 dinars and 150 dir-
hams worth only jl/2 dinars, according to the disciples he
pays zakat, for the nisab is complete in terms of weight — Y^
in gold and £4 m silver; but according to Abu Hanifah,
he does not pay zakat. Some dotcors say that Abu Hani-
fah would have addition in terms of Value only in case the
nisab would not be complete in terms of weight, and that
in this case, according to Abu Hanifah, the owner
would have to pay a zakat of 5 dirhams. The author of the
Bahr, however, retorts that Abu Hanifah stands for addi-
tion in terms of value in every case, and that the owner in
this case would have to pay zakat also according to Abu

1 Utntn, p. 34', Mugni, p. 387; Wajlz, p. 93-
1 Kharashi, p. 81.

THE ZAKAT TAXES

Hanifah, for although the nisab might be incomplete if com-
puted in terms of dinars, it would be complete if computed
in terms of dirhams — in fact, it would amount to 250 dir-
hams and the zakat due on them would be not 5 but 6% dir-
hams. In other words, according to Abu Hanifah, either
metal may be computed in terms of, and added to, the other
in order to complete a nisab.1 The Malikite view in this
respect is like that of the two disciples.2

Finally, as regards crops which are subject to the tithe,
Abu Hanifah exempts them from the requirement of nisab,
but his two disciples, Muhammad and Abu Yusuf, require
the presence of a nisab. Muhammad holds that the dif-
ferent genera of grains are not added together. Accord-
ing to him and one report from Abu Yusuf, they are
added together if they may not be exchanged against one
another in unequal quantities ; otherwise, as for instance in
the case of wheat and barley, they may not be added to-
gether, and each pays tithe by itself if it amounts to a nisab.
According to another report from Abu Yusuf they are
added together and pay tithe if together they amount to a
nisab,3 provided that they ripen at the same time, like bar-
ley and wheat, because in his opinion the tithe is a charge
by reason of the benefit derived from the ground, and when
they ripen together they are one single benefit.

According to a report from Abu Yusuf, when a person
has two pieces of land they are treated independently, if
the collectors are different, and they are treated as one
single piece of land if they both come under the jurisdiction
of the same collector. In the latter case, therefore, the nisab
of one piece may be completed by the produce of the other.

1 Mabsiit, p. 193; Bahr, p. 247; /ami', p. 317; Fatb al-Mu'tn, p. 393.

* Kharashi, p. 81.

3 Mabsiit, part iii, p. 3; cf. Afajma', p. 176.

22g MOHAMMEDAN THEORIES OF FINANCE

However, according to Muhammad Ibn al-Hasan, the pro-
duce of one piece is added to the produce of the other and
the nisab is reckoned with respect to the sum, because the
tithe is a charge on the owner and the owner in this case is
one and the same person. Al-Sarakhsi adds that Muham-
mad must mean simply that the owner as between him and
God should pay tithe on the basis mentioned, since in no
case the collector of one farm could collect the tithe of a
piece of land over which he has no jurisdiction.

According to the Shafiites,1 the nisab of one genus may
not be completed from another genus, though one species
may be added to another. In this last case each species
(naw1) pays a proportionate part of the entire zakat.
Wheat, barley, rice, maize (dhurah), beans, lentils ('adas),
peas (himmas), and millet (dukhn) are distinct genera.
Fruits of the same year may be added together even if they
matured at different times. But fruits and crops of one
year may not be added to those of another. The Malikites
agree with the Shafiites that the different genera may not
be added together, but they disagree as to the meaning of
" genus ". Thus with respect to tithe they consider the so-
called qatani (literally, sheath-bearers), such as beans, peas
and lentils, as one genus, although they admit that with
respect to sale they are distinct genera, and consequently
may be exchanged against one another in different quan-
tities without involving usury (riba). Likewise wheat
(qamh) and barley (sha'lr) are one genus. But maize,
millet and rice are distinct genera. So are dates (tamr),
raisins (zabib), and the four oil-bearers (dhawat al-zuyut),
such as olives and sesam.2

In reckoning the nisab of cattle jointly owned, each

lMinhdj, p. 239; Wajlz, p. 90; Mawardi, p. 205.
sDardir, p. 117; Kharashi, p. 74.

THE ZAKAT TAXES 22Q

share is considered separately. Thus although five camels
owned by one person constitute a nisab and pay zakat, they
are exempt from it if owned by two persons, since the share
of neither partner amounts to a nisab. According to al-
Shafi'i, however, such property pays zakat as a whole irre-
spective of its joint ownership if it is in the state of khultah*
and each of the owners belongs to the category of people
subject to the obligation of zakat? On this point Malik
agrees with the Hanifites to the extent of not considering
combined properties as one lot unless the share of each
amounts to at least one nisab. In such case the zakat is
divided between the two proportionally.

Al-ShafiTs ground for his view is the hadith : " The
separate are not combined and the combined are not separ-
ated, for fear of sadaqah" It is not therefore permissible,
he argues, to separate cattle and pay their zakat inde-
pendently, when they have been together all the time.
Moreover, by rearing their cattle together they have had

1 Khulfah is the state of two properties being so mixed that they
cannot be separated. According to the Muwaiicf (p. 112), in this con-
nection a state of khultah exists if the shepherd, the bull (/«&/),
the watering-pail (dalw), and the resting-place (murdh) are common,
even if the two owners can tell their cattle apart — it being a case of
joint ownership if they cannot tell them apart. According to al-Kha-
rashi, it is sufficient if three or more, of the above-mentioned four
things and the barn (mabyit), are common, provided, however, that the
two partners have intended the state of khultah and are both free
Moslems, and provided this state has lasted for a year. According to
al-Shafi'i (Untm, p. u), on the other hand, it is a case of khultah if,
for instance, the cattle are jointly owned. If, however, the cattle are
not jointly owned but have been merely herded together by the owners,
and the cattle of each may be distinguished from those of the other,
it is still a case of khultah if the cattle have had common resting-place
(murdh), pasture, watering-place, and bull (fahl). In either case the
state of khul^ah must have existed during the entire year. According
to the Minhdj (p. 235), intention is not necessary.

* Mabsut. p. 153; Umnt, p. 12; cf. Wajiz, p. 82; Muzani, p. 205.

230 MOHAMMEDAN THEORIES OF FINANCE

the benefit of reducing the expense, and it is not unrea-
sonable that they should bear this burden. If therefore
the entire zakat should be collected from one of the two
partners, or part of the zakat from the property of one and
part of it from that of the other, each partner would have
a right of recourse to the other (tarajuf) for his share of
the zakat, provided the amount collected does not exceed
the legal rate. For such part of it as has been collected un-
lawfully the person from whose property it was collected
may bring action against the collector only.1

The Hanifite argument, on the other hand, is that by the
very terms of the divine prescriptions a person is subject to
zakat when he owns a certain minimum of property, and
therefore in case of joint ownership each partner is liable
for his own share. As regards the hadlth invoked by al-
Shafi'i, the words " separate " and " combined " occurring
in it refer to ownership and not to locality, since it is unani-
mously admitted that the property of the same person, even
if scattered in many places, pays zakat as one lot. In other
words, the hadlth only means that it is not allowed to the
collector or the property owner to treat a lot of cattle owned
by one person as two lots, or lots owned by several persons
as one lot, with a view to increasing or decreasing the zakat ,
as the case may be. Thus it is not allowed to a person, in
order to escape the tax of one sheep due on his forty sheep,
to split them into two lots of twenty each; neither is the
collector allowed, in order to collect a zakat of one sheep,
to consider two lots of twenty owned by different indi-
viduals as one lot of forty sheep.2

Consequently,8 if one of the partners (shirkah mufawa-

1 Umm, p. 12 ; An§ari, p. 349.

1 Mabsiit, p. 154; 'Alamkiriyyah, p. 254.

1 Mabsiit. part iii, p. 40.

THE ZAKAT TAXES 231

dah, or shirkah 'indn) pays (add') the zakat of the other's
share he has no recourse to him for reimbursement. The
reason for this is that he had no authority to settle the zakat
of his partner, and therefore he loses the money he paid on
his account. Especially is this true, because by paying for
his partner he has not cancelled the latter's debt of zakat
since the zakat debt is discharged only when there is an in-
tention on the part of the person for whose zakat the money
is paid. To the hadith, "As regards that which concerns two
partners (khalit), they have recourse to one another (yata-
raja'ani) equally ", invoked by the Shafiites, the Hanifites
answer that they, too, believe in one partner's having re-
course to the other (taraju') but they claim that this hap-
pens only in case the collector takes the whole of the zakat
from the joint property (akhadha min 'urd al-ganam) ;
in such case each partner has recourse to the other for such
part of the other's share of zakat as was collected from his
own property, because there is implied permission to the
collector on the part of each partner to collect his share of
zakat from the common property. For instance, if the col-
lector collects from one hundred and twenty sheep owned
by two persons (eighty by one and forty, that is, one-third,
by the other), the zakat due on them, namely, two sheep
(one on the forty and one on the eighty), the owner of the
two-thirds has recourse to the owner of the one-third for
one-third of a sheep's value, because one-third of the entire
sheep due on his share of forty sheep was paid by his
partner, since of the two sheep taken as sakat, he owned
only one-third, namely, two-thirds of a sheep.1

According to both the Shafiites and Malikites,2 the state
of khultah is not limited to the case of animals but applies

1 Kasani, p. 30; Mabs&t, p. 154; 'Alatnkiriyyah, p. 254.

1 Minhdj, p. 235 ; Wajiz, p. 83 ; Ansiri, p. 348 ; Mudawwanoh, p. 103.

232 MOHAMMEDAN THEORIES OF FINANCE

also to crops and fruits, gold and silver, and the articles
of trade. The Hanifites again disagree with them except
that Abu Yusuf, as regards crops only, requires the tithe, if
the jointly owned produce amounts to a nisab, because, in
his opinion, the tithe is a charge upon the produce itself, not
upon the owners of the same, and therefore, as in the case
of the produce of waqf lands,1 the tithe is due when the
entire produce is of nisab quantity, irrespective of its joint
ownership. On the contrary, Muhammad Ibn al-Hasan re-
quires that the share of each partner amount to a nisab.2

The lapse of the zakat debt. If the nisab is accidentally
destroyed (halak) after the lapse of the year, that is, after
the zakat fell due, the zakat debt lapses, whether the prop-
erty was " apparent " or " non-apparent " or whether it had
meanwhile been possible to pay the zakat. This view is
unanimously adhered to by the Hanifites as regards the case
in which the public collector had not yet demanded payment
of the zakat. If, however, the collector had demanded pay-
ment of the zakat, according to some, the zakat debt still
lapses — and this is the view generally accepted ; but accord-
ing to others the debt must be paid (daman). Tithe is like
zakat in this respect.3

According to Al-SharVi, the zakat lapses if the property
has been destroyed accidentally before the payment of zakat
has been possible (tamakkun min al-adtf), but it does not
lapse if meanwhile payment of zakat has been possible.*

Finally, according to the Malikites,5 the zakat does not
lapse, in case of destruction, if the owner delayed its settle-

1 Cf. Ibn -Rushd, M., p. 230; Angari, p. 369.

1 Mabsut, part iii, p. 4.

* Majma', p. 166.

4 Hiddyah, p. 152; 'Indyah, p. 152; Mabstt, p. 174; Minhdj, p. 268.

6 Kharashi, p. 130.

THE ZAKAT TAXES 233

ment for more than a day or so, or if, for instance, he took
the tithe home, for future settlement, although he could
have settled it right away.

The argument of al-Shafi'i is that zakat is a financial ob-
ligation ordained by God and that it does not lapse merely
because the property is destroyed, if its settlement in the
meanwhile had been possible. He bases this on the analogy
of the debt of sadaqat al-fitr and pilgrimage. Indeed, if a
person was well-to-do when he started out for pilgrimage,
he is not freed from the obligation if his property is later
destroyed. Furthermore, he argues that the zakat debt is
a divine trust and one becomes responsible for it if he re-
fuses to settle it when it has been demanded by a person
who has the right to demand, for instance, a poor person.1

Al-Sarakhsi's argument in support of the Hanifite view
is that the zakat is a charge on the nisab and lapses when
the nisab is destroyed ; that there is no ground for holding
the property owner to liability (daman) for his zakat debt,
because there is liability only when a right of ownership
or possession has been encroached upon, and it cannot be
said that in this case the right of the poor to ownership or
possession has been invaded ; that the analogy of the debt of
sadaqat al-fitr and pilgrimages is not valid, because in their
case the obligation attaches to the person of the worshiper
and not to his property, and hence it continues even after
the destruction of the property ; then, too, in the case of the
sadaqat al-fitr and pilgrimage, property is a condition of
their being wajibs, not a condition of their payment being a
wajib, and so when once they have become due owing to
possession of property they do not lapse after its destruc-
tion; that zakat has been made obligatory for the consola-
tion of the poor, and after the destruction of his prop-

1 Mabsut, pp. I74-S.

234 MOHAMMEDAN THEORIES OF FINANCE

erty the owner is in need of consolation as much as the
poor and therefore is not obliged to console others; that
zakat is a small contribution from a great quantity of prop-
erty in order that its payment may not be heavy and for this
reason it strikes only productive property so that the hard-
ship involved in its settlement may be offset by the produc-
tivity of the property, and that therefore if the zakat were
extracted in this case, there would have been exacted other
than what was due ; finally, that the fact that a poor person
has demanded payment of zakat is of no account, because he
is by no means the very one beneficiary entitled to the zakat
and the zakat payer has the right himself to disburse the
zakat to the poor person and it is exactly in order to dis-
burse it to a more deserving poor person that he refused to
disburse it to him. The Hanifite doctors of 'Iraq, however,
claim that if the owner refuses to disburse the zakat to the
public collector he becomes responsible for it in case of
destruction, because the public collector, unlike the poor, is
entitled to demand payment of the zakat.

If only a part of the nisab has been destroyed accident-
ally, then only its share of the zakat lapses since the rest
can still pay zakat. If, for example, out of 130 sheep all
but 40 were destroyed, there would still be due a zakat of
one sheep on the 40. The rule in this respect is that the
part destroyed is applied first to the 'afw (the surplus over
the nisab) which does not pay zakat , and if it does not cover
the 'afw entirely, the amount of the zakat to be paid is not
affected, since the nisab has been left intact. But if the de-
stroyed part more than covers the 'afvu and runs over into
the nisab, the excess over the 'afw is applied to the various
nisabs successively, beginning with the nisab next to the (afw
until the first nisab is reached. For instance, if 15 out of
40 camels were destroyed, the various nisabs being 5, 10,
15, 20, 25, 36 and 46 camels, and the intervals between those

THE ZAKAT TAXES 235

numbers being the respective 'afws, the 1 5 camels destroyed
are applied successively to the 'afw of 4 camels (between
40 and the next nisab of 36), then to the nisab of
36 down to 25, just leaving 25 camels, the zakat for
which would be a bint makhad. If, instead of 15, 20 camels
were lost, then there would be due zakat on 20 camels,
namely, 4 sheep, and so on. This is according to Abu Hani-
fah. According to Abu Yusuf, the destroyed number ap-
plies first to the 'afw and then to all the remaining nisabs
proportionately, for instance, in the above case, the 15
camels are applied first to the 'afw of 4, and the remaining
ii are distributed proportionately among the rest, that is,
the remaining 25 camels are subject to a zakat of 25/36 of
a bint labun, which is the zakat of 36 camels.1 According
to Muhammad Ibn al-Hasan, however, in the above case, the
zakat due on the remaining 25 camels would be 25/40 of a
bint labun. This difference of view is due to the fact that
while according to Abu Hanifah and Abu Yusuf the zakat
attaches to the nisab alone, according to Muhammad and
also to Zufar, it attaches to both the nisab and the (afw.
Their argument is that zakat is due as a thank-offering for
the blessing of property and in this respect the 'afw is like
the nisab. The former two reply that there is a hadtth to
the effect that zakat is a charge on the nisab alone. The
hadlth in question is : " For every five camels one sheep, and
for the surplus (fafw) nothing until ten is reached." ' The
Minhaj 3 is at one with Muhammad.

So far we have been examining the case of accidental
destruction. The case of wilful destruction (istihlak) is
different because, if the property on which a year's zakat

lMajnta{, p. 167.

9 Ibid.

5 P. 268; WajH, p. 89. ' :

236 MOHAMMEDAN THEORIES OF FINANCE

fell due is wilfully destroyed, whether literally or leg-
ally, e. g., by exchange, its zakat must be paid (daman) x
irrespective of whether the value received in exchange is
still in the hands of the owner or whether it has been ac-
cidentally destroyed. This is because, unlike the case of
accidental destruction where the zakat debt lapses, in wilful
destruction there is no ground for such leniency to the
owner since he has wilfully destroyed a property in which
the poor had a right. Besides literal destruction, these
acts also are considered by the law as wilful destruc-
tion : Exchange of sawa'im animals against sawa'im animals
of the same or a different genus, or against gold or silver or
articles of trade; and exchange of articles of trade against
other than articles of trade. The ground for this is that the
zakat of sawa'im animals attaches to the animals themselves
and not to their value and so their exchange amounts to
their literal destruction.2 In general, exchange of wealth
(mat) on which a year's zakat has fallen due for wealth
that is not subject to zakat, such as slaves intended for per-
sonal use, or for no consideration whatever, as in the case
of a gift, or for other than wealth (mal), such as marriage
price, is considered wilful destruction.* There has been
dispute as to whether it is a case of wilful destruction to
keep one's sawa'im animals from forage and water until
they perish.*

It is not however a case of wilful destruction to exchange
one article of trade for another, even if the articles ex-

1 Daman legally means that if the property destroyed is of the class
of fungible (mithli) goods, it is made good in terms of its like, and if
it is of the class of non-fungible (qimi) goods, in terms of its value
(qimah}.

* Path, p. 154; Durr, p. 136.

8 Bahr, p. 236.

4 'Alatnkiriyyah, p. 254.

THE ZAKAT TAXES 237

changed are of different genera, unless the price received
was inordinately low (muhabat). In this last case the
owner pays the zakat for the reduction made. Thus, if one
should buy a trade slave with a 1,000 dirhams on which a
year's zakat had been due, and the slave should subse-
quently die, no zakat would be due on the 1,000 dirhams
or the slave, as the buying of the trade slave is not a
case of wilful destruction, and the death of the slave is a
case of accidental destruction. It would be a different case,
however, if one bought a personal slave, instead of a trade
slave, or if the trade slave he received in exchange was
worth, say, 500 dirhams only. In such case, one would
have to pay the zakat for the i ,000 dirhams, or in the second
case, for the 500 dirhams of reduction, such reduction being
inordinately great and subject to the suspicion that it was
intended for a present. In the exchange of articles of trade
the rule is that unless a definite intention is adopted the
article received in exchange is considered an article of trade
if the article given away in exchange was such. Thus, if a
person should exchange 1,000 dirhams against a slave —
because silver and gold are always articles of trade — the
slave is considered a trade slave, unless he was actually in-
tended for personal use.1 Likewise it is not a case of wilful
destruction if one should discharge (ibra) one's debtor
from his debt, or should lend an article (i'arah), or give a
loan (iqrad) and the property be destroyed in the hands of
the borrower.2

What has been said above applies only in case the de-
struction has occurred after the lapse of the year, namely,
after the zakat fell due. Destruction before the lapse of
the year, even though wilful, does not entail any liability
for the zakat that was yet to fall due on the part destroyed,

1 Path, p. 154. ' Bahr, pp. 235-6.

238 MOHAMMEDAN THEORIES OF FINANCE

and the zakat is paid only for the part that will be on hand
at the end of the year, provided the other conditions have
been met. However, according to the Malikites,1 if a per-
son wilfully destroys (ibdal) his cattle before the lapse of
the year in order to escape paying their zakat he neverthe-
less pays it if there is presumptive evidence of his intention,
e. g., if he destroyed the cattle within a month from the
completion of the year.

A second way in which the zakat may lapse after it be-
comes due is by the death of the property owner without a
will directing the settlement of the zakat from the third of
his estate. This is the Hanifite doctrine. The view of al-
Shafi'i is that the zakat debt of the deceased person may be
collected from the entire estate whether or not he left a
will to that effect.2

Finally, according to the Malikites,* the zakat of cattle
as well as of crops, i. e., apparent property, is collected from
the whole estate even if the deceased left no will to that
effect, but the zakat of non-apparent property is not col-
lected from the estate, because, unless there is evidence to
the contrary, the presumption is that the deceased paid it
himself. If, however, the deceased acknowledged his debt
of zakat during the last year of his life and willed its pay-
ment, then it is paid from the entire estate ; if , without such
acknowledgment, he willed its payment, it is paid after the
payment of the three more preferential debts for funeral,
etc., from the one-third of the estate as to which according
to Mohamedan law a will is valid; finally, if he acknowl-
edged but did not will it, the heirs are advised to pay the
zakat but may not be forced to do it.

1 Kharashi, pp. 57-8.

2 Kasani, p. 53 ; Mabsu}, p. 185 ; Minhdj, p. 262.

' Kharashi, p. 130; vol. v, pp. 425-6; 'Adawi, vol. v, p. 425.

THE ZAKAT TAXES 239

Al-ShafiTs argument is that the Prophet in one of his
sayings likened the claim of God to the claim of a fellow-
man; and since the latter may be collected from the estate
of a deceased person, the zakat debt may also be col-
lected. Moreover, after one's death his personal obligations
devolve upon his property and they must be discharged
by the heirs from the estate. Al-Sarakhsi, on the other
hand, argues that there is a hadith to the effect that a per-
son's property, outside of such part of it as has been con-
sumed or disposed of by will by the deceased in a charitable
way, becomes the property of his heirs; that in a case of
conflict between a claim of God and a claim of a fellow-man,
the latter is given precedence; furthermore, that the wajib
consists in the act of giving, not in the thing given, and
therefore cannot be discharged by the heirs ; moreover, that
the giving of zakat is an act of worship and as such must
be accompanied by the intention of the worshiper, which
in this case is impossible, since the intention of the heirs
cannot replace that of the deceased, unless the deceased
willed to that effect ; for the heirship of the heir is not based
on his consent but is enforced on him by the law.

If the death occurred during the year, the year is dis-
solved, and a new year must elapse before a zakat is due on
the property inherited. According to al-Shafi'i, the year is
not dissolved, and, therefore, the time passed before the
death is taken into account by the heirs in determining the
completion of the year in the discharge of the zakat dues of
the inherited property.

According to al-Kasani,1 a third cause for the lapse of
the zakat debt, after it becomes due, is apostasy (riddah).
This is the Hanifite and Malikite 2 view. Al-Shafi'i holds
that apostasy is not a cause of lapse. In other words, if

1 Kasani, p. 53. * Wajiz, p. 87.

240

MOHAMMEDAN THEORIES OF FINANCE

the apostate should return to Islam, according to the Hani-
fites he is not obliged to pay the zakat } but according to al-
Shafi'i he must pay it. Al-ShafiTs argument is that the
apostate is able (qadir) to perform (ada) the obligation
but that because a condition of performance is his being a
Moslem he is not held to perform it until after he returns
to Islam. He bases this on the analogy of the person who,
though unclean, is able to perform the obligation of prayer,
but may not do so until after he has purified himself. The
Hanifite argument is that Islam effaces what was before it,
and that the apostate is not fit (ahl) to perform an act
of worship or to be subject to an obligation of worship,
and hence upon his apostasy the obligation lapses forthwith.
May the owner sell his sawa'im animals after a year's
zakat has fallen due on them? The Hanifite answer is
"Yes". The argument is that the fact that a property is af-
fected with a divine right (haqq allah) constitutes no bar to
its sale ; that an act of sale is valid so long as the seller owns
the thing he sold and is able to deliver it to the purchaser,
and that both these conditions are fulfilled in the present
case; that finally, the zakat due on a property need not be
paid out of that very property, since the owner may dis-
charge it otherwise. When therefore the collector presents
himself after the sale, analogy requires that he should col-
lect the zakat from the seller and have no lien on the ani-
mals, since by sale they have become the property of the pur-
chaser and no zakat is due on them as yet. Moreover, the
seller is obliged to pay the zakat because by selling the ani-
mals he has destroyed the right of the poor. Although
analogy requires the above, this case is judged according
to istihsan which requires as follows : If the collector comes
before the two parties to the sale have parted, he has the
option either of collecting the zakat from the very animals
in question (and in that case the purchaser has action

THE ZAKAT TAXES

241

against the seller for the zakat's share of the price) or of
collecting the sakat from the seller and letting the buyer
keep the animals. However, according to Muhammad Ibn
al-Hasan, the question turns on whether or not the animals
have been taken away before the collector appeared. If the
collector appeared after the animals have been carried away,
he does not collect anything from the animals but applies to
the seller. If he comes before, he may collect the tax in
kind from the animals, for the purchaser begins to be re-
sponsible (d&min) l for (losses affecting) the things bought
only after he has carried them away. As regards prop-
erty subject to tithe, it is immaterial whether or not
the parties have parted or carried the thing sold away,
because tithe attaches to the produce of the earth in-
dependently of its ownership, whereas the sakat attaches to
the owner, not the thing owned.2 According to the Sha-
fiites,8 the sale is null and void to the amount of the sakat,
though valid as regards the balance.

The tribe of Taglib, notwithstanding that they were
Christians, were treated in a preferential way in that they
were subject, like Moslems, to sakat, though at a double
rate. In all other respects their sakat is subject to the same
rules as that of the Moslems. Thus their minor children
are exempt from the sakat and their women pay the same
sakat as their men. There is, however, a report from Abu
Hanifah through Hasan according to which their women
are not subject to sakat because the tax paid by the Taglib
tribe, although named sakat in deference to their Arab
blood, is in reality jizyah, and women do not pay jizyah.

The doctors all agree in considering the sakat paid by

1 In other words, while the goods sold continue to be at the seller's
risk, they are legally considered to be his property, and consequently
the zakdt due on them may be collected from them in kind.

1 Mabsuf, p. 173. * Minhdj, p. 269.

242 MOHAMMEDAN THEORIES OF FINANCE

this tribe as a kind of jizyah and in fact it is appropriated
like the jizyah. One reason for this is that when this tribe
was required by the calif Omar to pay the jizyah as a
tribute, they prevailed on him by invoking their Arab blood
and got his consent instead of the jizyah to pay the zakat
at a double rate. Omar is said to have told them : " This
is your jizyaht but call it what you will; its meaning is
jizyah in our regard and we shall place it with the jizyah." x
Another reason is that the tax paid by them is not in
reality zakat because the giving of zakat is an act of wor-
ship which the Taglib race is not fit to perform. A third
reason is that jizyah is a fine for infidelity, and this is what
happens here. When the Taglib tribesmen become Moslems
they cease to pay the double rate. The clients (mawali) of
the Taglib tribe, like other infidels, pay the jizyah and do
not share in the privilege extended to the tribesmen them-
selves.

According to the Mabsut, the compact made with the
Taglib tribe may not be broken by any Moslem state. In-
deed, the calif 'AH, at one time when the tribe had lost its
power, desired to break the compact, but the Companions,
'Ali being among them, agreed in a council that it is not in
the power of any one to break it. According to Muham-
mad Ibn al-Hasan the compact derives its main strength
from the fact of ijmaf. Moreover the Prophet said that
whatever the calif Omar did is well done.

The persons who became converts to Islam while they
were in the enemy land (dar al-harb) and remained there
for years before they came to the Moslem country are not
held to the payment of their zakat debt for past years, even
if they should have known that as Moslems they were under
obligation to pay zakat. The reason for this is that during

1 Mabsut, p. 176; Majma', p. 170.

THE ZAKAT TAXES 243

that time they were not under the protection of the Moslem
state. However, as between them and God, such persons
are recommended to settle their zak&t obligation. If, how-
ever, they did not know of the obligation of zakctt, they are
not under any obligation to settle it, although Zufar holds
the contrary view. Indeed Zufar has analogy on his side,
since by conversion to Islam one accepts all the obligations
of Islam and one's ignorance of these obligations is an ex-
cuse only as regards sins, but may not in any way operate
to remove an obligation which has been contracted owing
to the fact that its cause (sabab) was present.

We have, however, judged by istihsftn and said, " The
contraction of a sharfah obligation depends upon the com-
munication of the same. Does he not see that the people of
Quba [a suburb of Medina] continued to say their prayers
facing Jerusalem after the direction in prayer (qiblah) had
been changed towards the Ka'bah, and this was allowed to
them because they had not been informed of the change.
Indeed one is subject to the divine obligations in the degree
of possibility only, and there is no possibility of carrying
out an obligation before it has been communicated, and so
it is as if the divine commandment did not exist so far as
he is concerned." *

It cannot be said that the fact of the diffusion (shuytf) of
a sharVah prescription may be considered as tantamount to
its actual communication, for in the enemy world the law
of Islam does not spread.1

The persons who have belonged in the camp of Khari jitea
for years and have later returned to the fold of Islam like-
wise are not held to the payment of zak&t for past years,
even as regards their apparent property. However, as be-
tween them and God, they are enjoined to settle an obliga-
tion which has fallen upon them.

p. 181.

244 MOHAMMEDAN THEORIES OF FINANCE

SECTION II
The Zakat of Sawa'im or Flocks and Herds *

According to al-Sarakhsi,2 the zakat of animals is treated
first, because the Prophet in his letters referred to them first,
and cattle were considered by the Arabs, who were cattle
raisers, as the most honored property, and because the legal
provisions concerning the zakat of cattle are unanimously
agreed upon.

Sawa'im, plural of stfimah, literally means any animal
that is pasturing. Technically, however, the word sawa'im
does not apply to animals that are pastured in order later
to be used for riding (rukub) or carrying loads (haml),
because such animals never pay zakat. Thus animals used as
beasts of burden are not considered sawtfim even if they are
actually pastured every eight out of twelve months ; neither
does sawa'im apply to animals pastured in order to be later
sold for profit (tijarah), because such animals pay zakat
as articles of trade but not as sawa'im animals, the rules
concerning the two being very different. The term sawa'im
then applies to animals pastured for some other purpose,
for instance, for their milk (darr) and offspring (nasl)
or in order that they may grow fatter. Al-Kasani, how-
ever, does not consider animals pastured for flesh (lahm)
to be sarwtfim, on the ground that they do not bear any off-
spring which is the very quality in virtue of which sawa'im
animals are considered to be " productive ". The Jami' in
this connection remarks that as productivity is a concealed
(khafi) matter the short ah substitutes the fact of pasture

lMajma', p. 161; Hiddyah, p. 126; 'Alamkiriyyah, p. 248; Mabsut, p.
150; Minhdj, p. 228; Mudaivivanah, p. 66; Zarqdni, p. 54; Muwatta,
p. 109.

a Mabsut, p. 150.

THE ZAKAT TAXES 245

in its stead and whenever the latter is present considers the
former to be also present.1

Only animals pastured for at least more than half of the
year are considered sawa'im. They need not be pastured
through the entire year, for cattle owners cannot avoid
feeding their cattle on provender ('a/a/) during the days
of snow and cold. If, therefore, an animal is fed on pro-
vender during half or more of the year it is not a sawa'im
animal and is exempt from zakat unless it is subject to it as
an article of trade. If an animal intended for trade is pas-
tured for six or more months during a year it does not
become sawa'im unless it was also intended to be made
sawa'im. On the other hand, if the owner of sawa'im
animals intends to use them at work or feed them on pro-
vender, they do not cease to be sawa'im until he actually
carries out his intention. If, therefore, the year should
pass by before he did so the animals pay zakat as sawa'im.
If a person buys animals for trade and afterwards turns
them into sawa'im, the year is considered to run from the
time they became sawa'im*

Al-Shafi'i 8 says that an animal is sawa'im if it subsists
on pasture and does not involve for the owner expense for
provender. According to him, beasts carrying water (na-
wadih) or oxen used for ploughing or camels used for
transportation purposes are not sawa'im and do not pay
zakat, even if they are kept idle and pastured for the greater
part of the year, because sawa'im are the animals pastured
all their lifetime (dahrahu). Likewise, beasts of burden
((awamil), even if they are sometimes pastured and some-

i-Babr, Minbah, p. 229; Kasani, p. 30; Jdmi', pp. 299, 307; Mabs&t, p.
165; 'Alamkiriyyah, p. 248; Hiddyah, p. 147; Majma', p. 161.
2 For the relation of intention to act, cf. infra, pp. 271, 272.
8 Untm, p. 20; Muzani, p. 217.

246 MOHAMMEDAN THEORIES OF FINANCE

times used as work animals, or sheep sometimes fed on
provender and sometimes pastured, are not sawa'im and
" I would not take anything from their owners, although
if the animals were mine, I would pay their sadaqah, if God
will, and I should prefer that the person who owns them
should do so."

Both the Hanifites and the Shafiites are agreed that
animals are subject to the zakat of animals only when they
are sawa'im, although they differed in their definition of
the word sawa'im. Malik and al-Layth, on the other hand,
held that animals are subject to zakat even if they are used
for work, whether or not they are sawa'im. According to
some Malikites, Malik requires animals to be sawa'im as a
condition to paying zakat only in the case of sheep. Malik's
argument is that whether or not the animals are actually
pastured they are by quality pasture animals and the fact
of their prevention from being so does not take them out
of the denomination sawa'im.*- Al-Sarakhsi, however, re-
plies that the Prophet explicitly said : " For five of sawa'im
camels, . . ." which means that there is no zakat on animals
that are not sawa'im. Moreover, according to a hadith
reported by Ibn 'Abbas, the Prophet said : " There is no
sadaqah on the animals used for work (fawamil) and as
beasts of burden (hawamil)." Furthermore, only that
property is subject to zakat which is sought for its
physical produce, not its use. Is it not true in fact that
dwelling-houses and personal slaves do not pay zakat } and
that animals used at work are sought for their use and not
for their physical produce? Again, if the animal is fed
on forage there is no zakat on it because the expense is
great for the owner, and the reason why sawa'im animals
are subject to zakat is that their maintenance is so inex-

ani, vol. ii, p. 56; cf. Ibn Rushd, M.t p. 244; Ibn Rushd, B.t p.
231, 1. — 8; Muwatta, p. no, 1. 6; Mudawwanah, p. 73, 1. 14.

THE ZAKAT TAXES 247

pensive. Therefore no zak&t is due when there is great ex-
pense because evidence in the sources shows that the
smallness of the expense is an " effective cause " (athar)
of the obligation of sakat. Thus the Prophet said : " In
what has been watered by heaven the tenth, and in what
has been watered by buckets or water wheels half of one-
tenth."1 On the other side, al-Shafi'i, in justifying his view
against the Malikites, says : " There were water-carrying
animals in the time of the Prophet and his successors and I
have not heard any one relate that the Prophet collected
from them sadaqah, or that any one of his successors did
so." 2

The blind, the emaciated, the young, the sick, the lame,
etc., are treated like the sound ones in reckoning the nisab
of the sawaim animals, though they are not accepted in
payment of sakat. There is a hadlth to this effect from
Omar. People had complained to him to the effect that
the collectors counted the weaklings in reckoning the nisab,
but refused to accept the same in payment of sakat. Omar
answered that the collector was to count them in reckoning
the nisab but was not to receive them in payment,
just as he was not to take as sakat the sawOJim that were
nursing their young (rubba), those fattened for their flesh
(akilah), the pregnant, and the rams of the sheep (fahl
al-ganam), in order to strike a happy medium. Al-Sar-
akhsi observes that the last-mentioned animals are the
most prized ones among cattle dealers and that they are
not taken as sakat in obedience to the hadith : " Beware of
(taking) the best part of people's property ". In other
words, just as the interest of the property owner is pro-
tected by not taking the choice animals, so is the interest

1 Mabstt, p. 165.
1 Umtn, p. 20.

248 MOHAMMEDAN THEORIES OF FINANCE

of the poor considered by not taking the young and the
sickly, although they are all counted in reckoning up the
nisOb.1

According to al-Zahidi, only domestic animals are in-
cluded in reckoning the nisab, the wild and the crass be-
tween the two being disregarded. This view is approved
of in the Majma'. However, as it is stated in the Mukit,
the status of a cross depends on that of the mother and if
the mother was domestic the offspring is considered do-
mestic. This is also the view taken by the author of the
Durr.2 According to al-Shafi'i, the cross between domestic
and wild do not pay zakat because, while one side requires
the payment of tax the other exempts from it, and it is a
principle of law that in cases of conflict one must construe
in favor of exemption. The Hanifite reply is that the cross
normally is like its mother and follows its status so much
so that the owner of the mother owns its offspring also.
This is because the sperm of the father legally becomes
destroyed (mustahlak) by that of the mother and so the
offspring comes from her.8 According to the Malikites,*
the cross are exempt from zakat in both cases.

While an animal must answer the description of sawa'im
in order to pay the zakat of sawa'im animals, every sawa'im
animal is not subject to it, since it is only the sawa'im ani-
mals specified in the sunnah which pay the zakat of sawa'im
animals. These animals are treated in the lawbooks under
the following heads.

The Zakat of Camels (ibl). The lowest nisab in camels
being 5 camels, no zakat is due on fewer than 5. The
zakat on 5 camels up to 9 is one goat (shat) of medium

1 Mabsut, p. 172; Muwatta, p. 113; cf. Minhdj, pp. 234-5.

1P. 135.

8 Mabsut, p. 183. 4Kharashi, p. 52.

THE ZAKAT TAXES 249

size. All the hadlths bearing on this point are at one, and
so the doctors have been unanimous on it.1 The proportion
of I goat on 5 camels is based on their valuations in accord-
ance with the rate prescribed in the hadlth : " Give one-
fourth of one-tenth of your property ", for in those days
the goat sold at 5 dirhams and the bint makliad (a camel)
at 40 dirhams. Consequently, i goat for 5 camels would
be in the proportion of 5 for 200 dirhams. The Arabian
and the cross between the Arabian and the foreign camels
are alike with respect to zakat. The rates for more than 9
camels are as follows :

For 10 camels and more up to 14 inclusive, 2 goats.

For 15 camels and more up to 19 inclusive, 3 goats.

For 20 camels and more up to 24 inclusive, 4 goats.

For 25 camels and more up to 35 inclusive, i bint
makhad, i. e., a female camel colt in her second year.

For 36 camels and more up to 45 inclusive, i bint labun,
i. e., a female camel colt in her third year.

For 46 camels and more up to 60 inclusive, I hiqqah,
i. e., a female camel colt in her fourth year.

For 6 1 camels and more up to 75 inclusive, i jadha'ah,
i. e., a female camel in her fifth year.

For 76 camels and more up to 90 inclusive, 2 bint labuns.

For 91 camels and more up to 120 inclusive, 2 hiqqahs.

From 120 up to 144 the process is started over again ac-
cording to the Hanifites, namely, one goat for every 5
camels after the i2Oth camel, plus the 2 hiqqahs for the 120.
Thus for 125 up to 129, 2 hiqqahs and i goat, and so on
up to 144. And for 145 up to 149, 2 hiqqahs and i bint
makhad, and for 150, 3 hiqqahs.

After 150, the process of calculation is again repeated
from the beginning as follows :

lMabs*t, P. 150.

250 MOHAMMEDAN THEORIES OF FINANCE

From 150 up to 174, 3 hiqqahs plus i goat for every 5
camels after the i5Oth.

From 175 up to 185, 3 hiqqahs plus i bint makhad.

From 1 86 up to 195, 3 hiqqahs plus i bint labun.

From 196 up to 200, 4 hiqqahs or, if the owner pleases,
5 bint labuns.

The same applies on every 50 camels after the i5Oth,
namely, for 205 up to 209, i goat together with the 4
hiqqahs or 5 bint labuns, etc.1

The above is according to the Hanifites. Al-Shafi'i held
that as soon as 120 is reached, the zakat is computed at the
rate of i hiqqah for every 50, and i bint labun for every
40, the fractions being neglected. Thus from 121 to 129
the zakat would be 3 bint labuns, and for 130 camels, I
hiqqah and 2 bint labuns up to 139, and for 140, 2 hiqqahs
and i bint labun, and so on accordingly. Malik, on the
other hand, claimed that as soon as 120 is exceeded by at
least 10, the zakat is computed at the rate of i "bint labun
for every 40 and i hiqqah for every 50, the intervals being
omitted. Thus, according to him, after 120, nothing is due
for the excess until 130 is reached, the zakat on 130 being
i hiqqah and 2 bint labuns. The ground for the Shafiite
and Malikite views as against that of the Hanifites is a letter
of the Prophet on the sadaqah related by Ibn Omar, where
it was written : " When the number of the camels exceeds
1 20, then for every 40 a bint labun, and for every 50 a
hiqqah". Malik, however, construed the excess over 120
referred to in the hadith to mean such a number only as
would just bring the total number of camels under one or
the other or both of the two rates, that is, just result in the
total number of camels being a multiple of 40 or 50 or both.
Malik consequently considered free from zakat any excess

lMajnta', p. 162.

THE ZAKAT TAXES 251

which fell short of such a number, that is, an excess of from
i to 9, in other words the interval from 120 to 129. Al-
Shafi'i, on his side, construed the excess to mean any num-
ber after 120. The ground for the Hanifite view, on the
other hand, is among others the following hadlth of Qays :
" I said to Abu Bakr Ibn Muhammad Ibn 'Amr Ibn Hazm :
'Show me the letter on the sadaqah which the Prophet wrote
to 'Amr Ibn Hazm ', and he showed a letter written on a
leaf (waraqah) reading: ' When the camels exceed 120, the
rates are started over again, and for what is below 25 the
zakat is in sheep, one sheep for every 5 camels/ " x More-
over there are reports of the mash-Mr type from 'Ali and
Ibn ' Abbas to the effect that after 120 the process is re-
peated. Therefore as regards the excess after 120, the
process is repeated according to the hadlth of 'Amr Ibn
Hazm and the hadlth of Ibn Omar invoked by the others
is applied to the greater excess which brings the number up
to 200. As between the unit of fifties (khamslnat), in-
cluding the sub-units of one sheep for every five camels,
etc., provided for in the hadlth of 'Amr Ibn Hazm and the
units of forties and fifties suggested in the hadlth of Ibn
Omar, the former has been chosen because it is an essential
principle in sakat that in dealing with large numbers the
nisab should be one and definite.

From the fact that the names bint makhad, bint labiin,
etc., mentioned in the hadlths are names of female animals,
it has been inferred that only females can lawfully be ac-
cepted for the sakat of camels and that males are only taken
at their market value.*

The Zakat of Oxen or Bulls and Cows (baqr).* Baqr is

1 Mabstt, p. 152; cf. Fatb, p. 131.
1 Majma', p. 162.

•Wo/mo', p. 163; Hiddyah, p. 133; Minhdj, pp. 233-3; Miwardi, p. 198;
Kharashi, p. 55.

252

MOHAMMEDAN THEORIES OF FINANCE

a generic term meaning the whole bovine genus, both male
and female. Buffaloes (famus) are considered a species
of baqr. The fact that a person who swore not to eat
baqr flesh, upon eating buffalo flesh does not become a
perjurer must not lead one to think that buffaloes are a dif-
erent genus. It is simply owing to the fact that buffaloes,
being rare, do not occur to the mind. If, therefore, they
were not rare it would be a case of perjury. In the case of
baqr the male as well as the female are accepted in payment
of the zakat because, unlike the case of camels, where the
females are prized more, in baqr, as well as in sheep, there
is no premium on females.

1 No zakat is due upon fewer than 30 heads of baqr and
upon 30 and more up to 39, the zakat is i tabi' or i tabi'ah,
i. e., i male or female calf in the second year, and according
to Khalil, in the third year. And upon 40, i musinn or i
musinnah, i. e., a male or female calf in the third year, and,
according to Khalil, in the fourth year. This is based on a
hadith according to which the Prophet ordered Mu'adh to
collect the zakat of the baqr in the way mentioned. However,
this hadith does not mention how many heads of baqr are
free from the tax after 40 is reached. Therefore there is
dispute on this point. According to Abu Yusuf and Muham-
mad Ibn al-Hasan, and also a report from Abu Hanifah,
there is no zakat on the excess until 60 is reached. The
Shafiite and Malikite views are to the same effect. Accord-
ing to another report from Abu Hanifah, through Hasan,
after 40 up to 49 there is no zakat, and for 50, i musinn
and y$. of a musinn or % of a tabf. However, according
to a third report from Abu Hanifah, cited in a Zahir-al-
riwayah source (riwdyat al-asl),1 the excess over 40 until
59 pays zakat proportionally, i. e., 2.^/2. per cent of a musinn

lMabsut, p. 186. * Cf. Ibn 'Abidin, p. 16.

THE ZAKAT TAXES 253

per head. Thus 41 heads of baqr would pay a zakat of i
musinn plus 2l/2 per cent of a musinn. The ground for this
view is that the exemption of the 'afw from zakat is based
on a provision (nass) which is contrary to analogy and ex-
ceptional and therefore limited to the case concerning which
it was made. Consequently in this case the decision is ren-
dered according to analogy and so the excess over 40 up to
59 pays zakat at a proportionate rate. The two disciples,
on the other hand, based their view on the hadlth according
to which the Prophet ordered Mu'adh not to collect any
zakat from the intervals (awqas) between nisabs, and so
they have interpreted the interval between 40 and 60 as the
one referred to in the hadlth. Some interpreted the word
awqas to mean the young.

For 60 up to 69 the zakat is 2 tabfs or tabfahs.

For 70 up to 79 the zakat is i musinn or musinnah and

1 tab!' or tabi'ah.

For 80 up to 89 the zakat is 2 musinns or musinnahs.

For 90 up to 99 the zakat is 3 tabfs or tabi'ahs.

For 100 up to 109 the zakat is i musinn or musinnah and

2 tab'is or tabfahs.

For no up to 119 the zakat is 2 musinns or musinnahs
and i tabl' or tabfah.

For 1 20 up to 129 the zakat is 3 musinns or musinnahs
or 4 tabl's or tabi'ahs.

And so on, after 60, at the rate of i tab? or tabfah for
every 30 and i musinn or musinnah for every 40 heads of
baqr, in the intervals between successive multiples of 30
or 40 or both, for every additional 10 heads a musinn or
musinnah being substituted for the tabi' or tabfah.

The Zakat of Sheep and Goats (ganam).* Ganam in-

1 Ma/ma', p. 163; Mabsut, p. 182; Hiddyah, p. 135; Minhdj, p. 233;
Mawardi, p. 199; Kharashi, p. 56.

254 MOHAMMEDAN THEORIES OF FINANCE

eludes sheep (da'n) and goats (ma'az) of both sexes. The
ground for the zakat of ganam is the hadlth : " There is no
owner of ganam who did not give its zakat but that he will
be knocked down for it on a level ground the Day of Judg-
ment and the ganam will trample over him with his hoofs
and will strike him with his horns," and " Let me not find
any one of you come on the Day of Judgment with a sheep
(shat) on his shoulder that is bleating and say : ' Oh Mo-
hammed, Oh Mohammed ! ' for I will say to him : ' I will
not let you have from God any thing. Did you not hear it
when we told you about it ? ' " x

According to the Hanifites, as well as the Shafiites and
the Malikites, there is no zakat on fewer than 40 heads of
ganam. And upon 40 and more up to 120 heads, the zakat
is i shat.2

Upon 121 and more up to 200, the zakat is 2 shats.
Upon 201 and more up to 399 the zakat is 3 shuts.
Upon 400 and more up to 499 the zakat is 4 shats.
Upon 500 and more up to 599 the zakat is 5 shats.

And so on, at the rate of one shat for every additional 100
heads after 500, fractions being neglected. The above rates
are based on letters concerning the sadaqah rates written by
the Prophet and the calif Abu Bakr, and there is ijmaf on
these rates.*

In reckoning up the nisab of ganam, the sheep and goats
are counted alike, but in the payment of their zakat there
is some difference between the two. The youngest ganam
which are subject to zakat and are accepted as lawful pay-
ment for it are the thanis, i. e.f one year old ganams, not

lMabsut, p. 182.

8 Shdt is a generic term applying to sheep as well as to goats, al-
though in common usage it means sheep.
1 Hiddyah, p. 135.

THE ZAKAT TAXES 255

the jadha' s, i. e.f young ganam under one year and above
six months old. This is the Zahir-al-riwftyah view. How-
ever there is a report from Abu Hanifah through al-Hasan
to the effect that, although only the thanis of goats are ac-
cepted in payment of zakat, in the case of sheep both the
thanis and the jadha's are accepted. This is the gayr Zahir-
al-riwayah view. This is also the view of Abu Yusuf and
Muhammad Ibn al-Hasan. The ground for this view is
the hadith : " We have a right on the jadlia' and the thani."
Moreover the jadha's of the sheep are lawful for sacrifice,
and hence for zakat also. The ground for the first view is
a hadith of the calif 'Ali, to wit: " In zakat only the thanis
and what is older is taken ". Furthermore the lawfulness
of the jadhaf in sacrifice is not to the point, because there
it is based on a special prescription (nass) which is against
analogy and therefore cannot be extended to the case of
zakat. Besides, the jadhae mentioned in the hadith in regard
to sacrifice refers to the jadha' of camels. The author of
the Path * observes that although the first view is Zahir-al-
riwayah, the second view which allows the acceptance of
the jadha' is to be preferred. According to the Durrt* the
jadha' may be accepted at its appraised value.

According to the prevalent Shafiite view,8 the zakat of
ganam is paid in terms of one-year-old sheep (jadha' ah) or
two-year-old goats (thaniyyah). On the other hand, ac-
cording to the Malikites,4 it is paid in terms of one-year-old
sheep or goats.

According to the Hanifites, as well as the Malikites, in
ganam both sexes are acceptable for payment as zakat, but

1 P. 136.

• Minhdj, pp. 229, 233; Wajiz, p. 80.

4Kharashi, p. 56.

256 MOHAMMEDAN THEORIES OF FINANCE

in al-ShafiTs opinion, males are lawful payment only when
the entire nisab consists of males, because males alone can-
not procreate but are acceptable in the latter case because
the zakat must be a part of the nisab. The Hanifite argu-
ment is that the word shat occurring in the hadith applies
to both sexes.1

When the sheep and goats are mixed together, it is unani-
mously agreed that they are to be counted indiscriminately
in reckoning the nisab. This is also true when buffaloes
and baqr are mixed together. According to the Hanifites,
the zakat is taken from animals of average value when the
two species are mixed. There are two views on this point
by al-Shafi'i. One view is that the zakat is taken from the
size that predominates because importance always attaches
to the predominant. The other view is that one of large
size and one of small size are appraised and their average
is computed ; then an animal of that value is taken as zakat ;
both sides being thus considered.2

The Zakat of Horses (khayl).3" Horses, when males and
females are together, pay zakat, according to Abu Hanif ah,
if they are sawa'im. The owner has the option of paying a
dinar for each horse without regard to the requirement of
nisab, or of appraising them and, if their value amounts to
a nisab, of paying at the rate of 5 dirhams for every 200
dirhams. This view has been preferred by the authors of
the Majma' , Hidayah, Mabsut, Bada'i' and by al-Quduri.
However, according to Abu Yusuf, and Muhammad Ibn
al-Hasan, as well as al-Shafi'i, there is no zakat on horses.
In the fatwa collection of Qadikhan the opinion of the latter
has been recommended. It must be remarked here that

1 Mabsut, p. 183 ; cf. Minhdj, p. 234.

*Ibid.

8 Majma', p. 164; Mabsut, p. 188; Path, p. 137.

THE ZAKAT TAXES

although Abu Hanifah favors zakat on horses, he leaves
the payment to the voluntary choice of the owner, the state
having no right to collect it by force. According to the
Mabsut, the ground for this is the fact that horses are
objects of great desire and instruments of warfare and that
therefore greedy persons would wrest them from their
owners if they knew of their existence.

If there are only male horses they are, by unanimous
opinion, exempt from tax, although a report from Abu
Hanifah points to the contrary. If, however, they are all
female, there are two views on the matter from Abu Hani-
fah ; according to one, they pay zakat, but according to the
other they do not.

It is stated in the Majma' that Abu Hanifah's view to the
effect that horses are subject to zakat applies only in case
the horses have been pastured for their offspring (nasl),
for if they were pastured for riding or transportation or
the conduct of holy war, they are exempt from the tax, and
if they are pastured for trade, they pay the zakat of trade,
not that of sawa'im animals. This last point is agreed to
also by al-Shafi'i.1 The ground for the view of the dis-
ciples and al-Shafi'i are the hadiths : " There is no sadaqah
on the Moslem for his slave and his horse (faros) ", and,
" I have pardoned my community (ummah) from the sada-
qah of the horse and the slave ". Moreover, there is ijmtif
to the effect that the imam cannot collect the zakat of horses
by force. Then, too, according to Abu Hanifah himself the
zakat of horses is in terms of value and not in kind, but it
is a well-known principle that the zakat of sawa'im animals
is in kind. Al-Shafi'i further adds that the Prophet never
collected zakat from horses. Abu Hanifah's argument, on
the other hand, is that according to Ibn al-Zubayr, quoting

1 Umm, p. 22.

258 MOHAMMEDAN THEORIES OF FINANCE

Jabir, the Prophet said : "For every sawa'im horse (faros) *•
idlnar or 10 dirhams, and there is nothing on horses sta-
tioned in forts (murabatah) ". Furthermore, the calif
Omar wrote to Abu 'Ubaydah ordering him to collect
sakat from the sawaim horses at the rate mentioned.
Again, in the time of Marwan a council of the Companions
was held on this matter and in it Abu Hurayrah said:
" There is no sadaqah on a man for his horses and slaves ".
Marwan then said to Zayd Ibn Thabit : " What do you say,
oh, Father of Sa'id ? " and Abu Hurayrah, wondering at
Marwan, said : " I am relating a hadlth of the Prophet, and
he says : ' What do you say, oh father of Sa'id ?' " Zayd,
thereupon, observed that Abu Hurayrah was telling the
truth but that the Prophet only meant the horses of the
warriors, and that horses kept for their offspring were sub-
ject to sakat at the rate above mentioned. Al-Sarakhsi says
that the reason why the hadlths concerning horses are not
widespread is because horses in those days were very much
honored and used in war only; and that the sakat is col-
lected in value because the poor cannot use it as such since
according to Abu Hanifah the flesh of horse is not lawful
for eating.

As regards the two views of Abu Hanifah concerning
mares when they are alone, the ground for one is that the
productivity of horses consists in their offspring and is
therefore absent when the mares are alone. The ground for
the other view is that mares may produce offspring by the
use of a borrowed stallion (fahl). Finally, the ground for
Abu Hanifah's view that male horses when they are alone
do not pay sakat is the fact that male horses by themselves
cannot produce offspring, and their value does not increase
with age as is the case in other animals, neither is their

1 Faras is a generic term applying to male and female as well as to
Arabian and foreign horses.

THE ZAKAT TAXES

259

growth in flesh of any account since their flesh may not be
eaten.

As regards the option of the owner between the two
rates, it is based on a hadlth from the Prophet as well as
the practices of Omar and Zayd Ibn Thabit. Some said that
this applies only to the Arab horses because they all have
about the same value, that consequently in other horses the
zakat is paid at the rate of five for two hundred on the basis
of their appraised value. However, the author of the
Majma' observes that if this applies to the Arab horses
which are higher in price it ought to apply a -fortiori to non-
Arab horses. Still others say, that it applies only to horses
having the same value, and that horses varying in value
pay the zakat on the basis of their appraised value.

Mules (bigal) and asses (hamir) do not pay the zakat of
sawa'im animals even if they are sawa'im, but they pay like
other things the zakat of trade if they are intended for trade.
The ground for this is the fact that asses and mules in spite
of their large numbers are not pastured in most of the
cities, and, in law, importance attaches only to the predomi-
nant and the general. " Therefore there is no zakat on
them but God, may he be praised and exalted ! knows better
the right." x

According to the Majma', there is a hadlth to the effect
that asses do not pay zakat , and that if asses do not pay
mules also must not pay, since they are the offspring of
asses.

The Zakat of the Young.2 There is no zakat on the
young of camels (fasil, plural fuslan) and the young of
sheep and goats (hamal, plural hiimlan) * and of cows
('ijjawl, plural 'ajajil) which are under one year of age.

1 Mabsut, p. 189.

1 Durr, p. 136, 1. — 12.

* Majma', p. 165.

26o MOHAMMEDAN THEORIES OF FINANCE

That is to say, if a man were to purchase twenty-five camel
colts or forty kids or thirty calves, all under one year old,
or if the same were given to him as a gift and one complete
year passed from the time of acquisition, still no zakat
would be due on them until a year passed from the day
they became one year old.1 This is according to Muham-
mad Ibn al-Hasan and the last opinion of Abu Hanifah. In
this connection Abu Yusuf is quoted as saying :

I went to see Abu Hanifah and said to him : " What do
you say concerning a person who owns forty lambs (ha-
mal) ?" He said : " One grown sheep (shat) is due "on
them." Then I said : " Perhaps the value of that one sheep
will equal that of most of the lambs or of all of them." He
reflected for a while and said: " No, one of the lambs is
taken." I said: "Are then lambs taken as sakat?" He
thought a while and said : " No, in that case nothing is due
on them."

Some of the doctors dismissed this story as too childish to
be true of Abu Hanifah. Others, however, objected to a
similar construction claiming that the report was too wide-
spread (of the mashhur type) to be set aside and that under
the circumstances the right thing to do was to explain the
matter as best they could. And so they said that Abu Hani-
fah was merely trying to see if Abu Yusuf, his disciple, had
learned the art of discussion and when he saw that he had,
he expressed the view he really believed in. Zufar's and
Malik's views are at one with the first view of Abu Hani-
fah, but the views of Abu Yusuf and al-Shafi'i agree with
his second view, namely, that the young pay sakat, but that
it is one of the young that is taken as such.2

1 Path, pp. 139-140.

JC/. Mawardi, p. 199; Wajiz, p. 82; Minhdj, p. 235; Muwatta, pp.
113-4; Kharashi, pp. 52, 56.

THE ZAKAT TAXES 26l

Some remark that the foregoing difference in reality
turns on the question as to when the year begins to run,
not whether or not lambs pay zakat, since by the end of
the year when zakat is due they cease to be " lambs ".
Others, however, observe that the difference turns on the
question of the continuation of the year, namely, if the
sheep should bear young during the year and perish before
its completion, whether or not their year continues with
respect to their young. If, however, among the young
there are grown-ups, be it only one, then both young and
old are counted in reckoning up the nisdb, although the
young are not accepted for zakat, and if the nisdb is com-
plete the zakat is due. Thus, if there are 39 lambs and one
grown-up sheep, the sheep is taken as zakat after the lapse
of a year. But if the sheep dies after the completion of the
year, then according to Abu Hanifah and Muhammad, the
rest are exempt from zakat since it became due by virtue of
the sheep, but according to Abu Yusuf there is due on them
a zakat of 39/40 of a lamb.1

SECTION III

The Zakat of Gold and Silver and the Articles of Trade '
Some texts treat this section under the general caption of
" zakat of commercial capital " (zakat al-mal) as distin-
guished from " zakat of sawtfim ".* Other texts treat it
under several captions, such as " zakat of gold and silver ",
or " zakat of gold " and " zakat of silver ", and " zakat
of articles of trade ".* However, they all agree that the

1 Path, p. 141.

'Ma; wo', p. 168; Mabs&t, p. 189; Hiddyah, p. 158; Umm, p. 33;
Mawardi, p. 206; Kharashi, p. 81 ; Dardir, p. 118.

*C/. Durar, pp. 115, 118; Durr, p. 138; Hiddyah, p. 158; Mabstt, P.
189-

« Quduri, p. 22; Umm, pp. 33, 34, 39, etc.

262 MOHAMMEDAN THEORIES OF FINANCE

zakat of sawa'im animals is a tax on the animals by reason
of their physical identity ((ayn), while, on the contrary,
the zakat of the articles of trade, and, according to the
Hanifites only, also of gold and silver, is due by reason of
their commercial value (qimah). Consequently in the
articles of trade the meaning of productivity is considered
with reference to their value just as in the sawaim it is
considered with reference to the animals as such ('ayn).**
Notwithstanding that the zakat is by reason of the value,
not the physical identity ('ayn), according to the Hanifites,
the zakat of a given article nevertheless attaches to its physi-
cal identity. With respect to the articles of trade al-Shafi'i
remarks that the zakat attaches to their value because it
became due by reason of it.2 The Hanifites answer that al-
though the zakat obligation attaches to one's trade property
by reason of its commercial value (sifat al-maliyyah) , inas-
much as a given piece of property has a physical identity
of its own, the zakat which fell due on that piece of prop-
erty attaches to its physical identity.*

According to the Hanifites, the zakat of trade is given
preference in case of conflict between the zakat of trade
and the zakat of sawa'im. Thus if a person has sawa'im
camels which he bought for trade, the camels pay the zakat
of trade only. Al-Shafi'i * agrees that the same property
pays one zakat only but he holds that in such case it is the
zakat of sawa'im that must be paid, unless the nisab of
camels, considered as sawa'im, is not complete, for in that
case they pay zakat as articles of trade if their value amounts
to a nisab. The argument of al-Shafi'i is that the zakat of

lMabsut, p. 190.

1 Umm, p. 33.

1 Mabstt, p. 191, 1. —io.

4 Cf. Umm, p. 41, I. 20; Minhdj, p. 253; Wajls, p. 05.

THE ZAKAT TAXES 263

sawaim is a stronger obligation because the entire commu-
nity has agreed that it is a wdjib and because it is based on
clear, revealed statements (nass zahir). Since the weak
may not conflict with the strong, when a property is subject
to zakat both as sawaim and as an article of trade, it pays
zakat as sawaim only. Moreover in the preference of the
zakat of sawaim there is advantage for the poor, because
the zakat of sawa'im is collected by the collector whereas
the zakd,t of trade property is paid by the owners themselves
" and often they do not pay it ". The Hanifite argument,
on the other hand, is that as soon as animals are intended
for trade, the purpose of pasture and the cause (sabab) of
the zakat of sawa'im cease to exist. For the productivity
of the sawa'im is physical and necessitates that the animals
be permanently retained in one's ownership, but the inten-
tion of trade militates against this, and so the animals in
reality cease to be sawa'im. On the contrary, they become
trade property both in appearance (siirah) and in reality
(ma'na) and therefore the zakat of trade is given prefer-
ence. However, the right to collect this zakat of animals
still belongs to the state collector, irrespective of whether
they are subject to the zakat of sawa'im or of trade because
they are always apparent property and stand in need of the
imam's protection.1 The Malikite 2 view on this point is
like the Shafiite, for according to the Malikites the zakat of
trade applies to such articles only as are not subject to sakat
by reason of their physical identity.

The classes of goods subject to the zakat of wealth are :

(1) Gold (dhahab), whether bullion or wrought.

(2) Silver (fiddah), whether bullion or wrought.

(3) Articles of trade ('urud al-tijarah).

t, p. 170.
2 Kharashi, p. 99; 'Adawi, p. 99; Dardlr, p. 121.

264 MOHAMMEDAN THEORIES OF FINANCE

Gold and Silver. The nisab of gold is 20 mithqals x and
the nisab of silver is 200 dirhams. The rate of zakat both
in gold and silver is one-fourth of one-tenth of the nisab,
i. e.} one-half mithqal in 20 mithqals of gold and 5 dirhams
in 200 dirhams of silver.

There is no sakat for less than 20 mithqals of gold and
200 dirhams of silver because of the hadtths : " There is no
sakat on gold until its value amounts to 200 dirhams," and
" There is no sakat on silver until it reaches 200 dirhams
and when it reaches 200 dirhams the sakat on it is 5 dir-

*A mithqdl literally means any measure of weight. In general usage
it denotes the weight of a piece of gold weighing 20 qirdts. A qirdt is
the weight of 5 medium-sized grains of barley whose husk has not
been removed but whose projecting ends have been cut off. The
mithqdl is then 100 grains. This is according to the later canonists
and to the weight system of Hijaz and most of the cities. According
to the earlier writers and to the weight system of Samarqand, a mithqdl
is 6 ddniqs, a ddniq 4 tassiijs, a tassuj 2 habbahs, and a habbah 2
grains ; in other words, a mithqdl is 96 grains, or 19 qirdts and I grain,
instead of the 100 grains or 20 qirdts of the former version. Dindr
literally means a round gold coin, and technically a mithqdl's weight
of such coins. Likewise dirham literally means a round silver coin,
and technically the weight of such a coin. There have been various
versions concerning the weight of a dirham in terms of a mithqdl, a
dirham being, according to these estimates, 1/2, 6/10, 9/10 of, or I
mithqdl. Later in the time of the calif Omar the weight of the dirham
was fixed at 7/10 of a mithqdl. This last ratio is called the septimal
weight (wazn sab'ah) and is the weight used in zakdt. {Tech. Diet.,
p. 500; Majma', p. 169.) According to certain doctors in zakdt it is
the weight of each locality that is taken into consideration, (fdmi1, p.
311.) For the Shafiite and Malikite views on the matter, see Minhdj
(p. 244), Mawardi (p. 206) and Kharashi (p. 81). According to the
Mabstit (p. 100), at the time of the Prophet, the dinar was valued at
10 dirhams', in other words, I mithqdl of gold was worth 10 dirhams
of silver. There are various versions concerning the weight of a
dirham in terms of a mithqdl, but the version generally accepted is
that a dirham was H of a mithqdl. The value of gold, then, in rela-
tion to that of silver seems to have been as i to 5, or, according to the
most extreme version, as i to 10. In Hamilton's English translation
of the Hiddyah, the dirham is valued at about 2 pence sterling.

THE ZAKAT TAXES 26$

After the first 20 mithqals and 200 dirhams, the zakat
for every additional 4 mithqals and 40 dirhanis is 2 more
qlrats of gold and i more dirham of silver respectively. If
the additional amount after the 20 mithqals or 200 dirhams
is below the above-mentioned quantities, according to Abu
Hanifah there is no zakat on it. According to Abu Yusuf
and Muhammad Ibn al-Hasan, as well as al-Shafi'i,1 and
the Malikites,2 such additional quantity even if less than 4
mithqals and 40 dirhams respectively is subject to a propor-
tional amount of zakat, namely, at the rate of one-fourth
of one-tenth. The ground for this view is the hadlth of
'Ali : " and for what is beyond 200, accordingly," and also
the fact that zakat is a return of gratitude for the blessing
of property, and therefore, although in the beginning the
nisab is necessary in order that the state of wealthiness may
be realized, when the nisab is once complete, any excess, no
matter how little, operates to increase the state of wealthi-
ness to a corresponding degree and therefore it must pay
zakat proportionally, without regard to nisab requirements.3
Abu Hanifah, on the other hand, in support of his view
invokes among others the hadlth : " For every 200 dirhams t
5 dirhams, and for every 40 dirhams, I dirham" where the
nisab of 40 dirhams is mentioned after that of 200 and ap-
parently is meant as a secondary nisab which is to come
into operation after the first nisab of 200. Moreover, in
the case of sawa'im animals there was after the first nisab
an interval (waqs) exempt from zakat and it is reasonable
that there should be one in gold and silver also. Finally,
the hadlth of 'Ali invoked by the opponents has never been
traced (marfu') to the Prophet. Al-Shafi'i, in answer to
the argument derived from the analogy of sawa'im animals

1 Cf. Wajis, p. 92. * Kharashi, p. 81.

8 Mabstt, pp. 189-90.

266 MOHAMMEDAN THEORIES OF FINANCE

with respect to the intervals which do not pay zakat, says
that in the animals this must necessarily be so in order to
avoid forced partnership between the state and the zakat
payer in cases where the sakat would be a fraction of an
animal. The 'Inayah, on the other hand, retorts, on the
ground of administrative expediency, that if in silver, for
example, an excess of fewer than forty dirhams were taken
into account the determination of the zakat, and certainly
its payment, would be very difficult and often impossible
owing to the incommensurate numbers and the minute frac-
tions that would result from such a procedure.1

In regard to the zakat of gold and silver the following
points must be borne in mind :

(i) From the standpoint of zakat, bullion (tibr) gold
and silver is like wrought or coined ('ayri) gold and
silver,2 such as the dirhams and dinars or the ornaments,
decorations, and plate made of them. Gold and silver
wrought for purposes of decoration and personal adorn-
ment pay zakat as bullion, whether or not they are used by
women, whether or not the amount used is excessive, and
finally, whether they are kept for purchase of necessaries
(nafaqah), for personal adornment or for trade. Accord-
ing to Malik, gold and silver do not pay zakat if used for
lawful purposes. There is also a report from al-Shafi'i
to the same effect. The use of gold and silver by
women for personal adornment is considered lawful.
On the other hand, men as a rule may not use either of the
two metals for personal adornment, excepting silver seals,
gold nose rings and silver-covered arms. Gold and silver
plate, however, is forbidden for both sexes.3 The ground
for the Malikite and Shafiite view is that gold or silver used

1 Hiddyah and 'Indyah, p. 160. * Jdmi', p. 311.

8 For details see Kharashi, p. 86; Dardir, p. 119; Mawardi, p. 207;
Minhdj, p. 244; Umm, p. 355 Waji*. P- 93-

THE ZAKAT TAXES 26/

in the ways mentioned, is, like one's personal clothing, in-
tended for everyday use which is a lawful purpose. The
Hanifite argument is that they are productive property and
must pay zakat. The productivity here consists in the fact
that, unlike clothing, gold and silver are by nature intended
for trade.1

(2) In determining whether or not the nisab is com-
plete and a zakat is due (wujub) it is the weight and not
the value or number (fadad) that is taken into account.
Thus if one should have a golden or silver pitcher weighing
ten mithqals or one hundred dirhams but owing to its artis-
tic value worth twenty mithqals or two hundred dirhams it
is not subject to zakat. * This point is agreed upon unani-
mously. There is, however, difference of opinion as td
payment. According to Abu Hanifah and Abu Yusuf it
is still the weight that serves as basis. Zufar claims that
the value and Muhammad Ibn al-Hasan contends that the
one that is more favorable to the poor serves as a basis.
Thus if one should give in payment of zakat, instead of
five good dirhams, five spurious ones worth four good ones,
the zakat debt is discharged, according to the two first doc-
tors, since the weight in both cases is the same, but ac-
cording to the others it is not. If, on the other hand, he
should give four good dirhams worth five bad ones in the
place of five bad ones, there is still due a fifth dirham, but
according to Zufar, who takes into consideration the
value, the entire debt is discharged. The above ap-
plies only when a zakat debt is paid in terms of its own
genus, for it is admitted unanimously that when the zakat
debt is paid in terms of another genus, it is the value that
is taken into consideration. The Shafiites and Malikites *

1 Majma", p. 169.

1 Babr, p. 244; /ami', p. 311; Afa/ma', p. 168; ' Alamkiriyyah, p. 251.

* Cf. Umm, p. 34; Kharashi, p. 81.

268 MOHAMMEDAN THEORIES OF FINANCE

take into consideration always the weight only, for accord-
ing to them gold and silver pay zakat by reason of their
physical identity and not their value.

(3) I* Sold ar silver be mixed with an alloy (gishsh)*
it is considered as pure if the alloy is less than half the con-
tent. For instance, if one should possess dinars and dir-
hams which contained more than fifty per cent of gold and
silver respectively they would pay zakat as gold and silver
at the full rate. If the alloy just equals the nobler metal,
it does not then pay as gold and silver, although some say
that it still pays the full rate, and others, that it pays only
a half rate. Finally, if the alloy predominates over the
gold or silver, the article is considered to belong in the
class of lurud and as such it pays zakat according to value,
if it comes under the description of an article of trade or is
used as currency (thaman rafij). This is in case the gold
or silver cannot be separated to pay zakat independently
according to weight, for in such case the precious metal is
legally deemed to be destroyed. Consequently, if the gold
or silver can be separated, according to most doctors, it
pays zakat by weight. According to others, however, if
the article was intended for trade it pays the zakat of
trade according to value, even if the gold or silver can be
separated.2 According to one view, in gold and silver
coins it is not necessary actually to separate the precious
metal and it is sufficient if it is known that they contain a
nisab weight of the metal in question. According to the
Shafiites,3 alloys pay zakat for the precious metal they con-
tain only in case the latter by itself amounts to a nisab
weight.

1 Jam?, p. 312.

8 Path al-Mu'in, p. 390.

* Minhdj, p. 244; Umm, p. 33; Mugni, p. 380.

THE ZAKAT TAXES 269

When gold is mixed with silver instead of with an alloy,
if the gold predominates over the silver, then the entire con-
tents are taxed as pure gold. If, on the contrary, the silver
predominates, then each pays zakat separately if of nisab
weight.1 According to the Shafiites,2 when gold and silver
are mixed together it is not allowed to pay zakat for the
whole as pure gold, since the zakat of silver is not dis-
charged unless it is paid in silver. If the weight of each
metal is not known, e. g., if a vase is made of silver and
gold, 600 dirhams of one and 400 of the other, but it is
not known which, then the zakat payer may proceed to de-
termine the matter, as in the case of other alloys, by melt-
ing, etc., or if he is of age and is paying his own zakat, he
may, in order to avoid sin, resort to extreme precaution
(ihtiyat) and pay zakat of gold for 600 dirhams, and also
zakat of silver for 600 dirhams.

According to al-Haytami,3 in case of alloys, if the zakat
payer does not know the amount of zakat which he must
pay, he resorts to the opinion of two experts or determines
it by the method of water displacement. If neither way is
possible, he has the option of melting the article and paying
the zakat of the precious metal, or paying the zakat for the
nisabs of which he is sure (tayaqqana) and, by way of pre-
caution and in order to avoid committing a sin (ihtiydt),
also for the nisabs of which he is not positive. This, how-
ever, applies only in case the zakat payer is paying his own
zakat, for, if he is paying the zakat of his ward (mahjur
'alayh), he has no right to resort to extreme precaution and
pay for the nisabs of which he is not positive. In fact this
is the way of procedure : he consults two experts and pays

1 Durr, p. 138; 'Alamkiriyyoh, p. 251.
*Mugni, p. 380; Angari, p. 377; Wajiz, p. 93.

*Al-l<atdwa al-Kubra, vol. ii, pp. 34-5; cf. Umm, p. 34; Wajls, p. 93;
Mugni, p. 380; An§ari, p. 377.

MOHAMMEDAN THEORIES OF FINANCE

according to their opinion ; or he determines the proportion
of the precious metal by means of its water displacement.
If these two methods are not possible, he melts a small part
of the article, if that is possible. If, however, the amount
of the metal can only be determined by melting the whole
of the article or an important part of it, either method re-
sulting in a decrease of the value of the article, he pays the
zakat only for the nisabs of which he is positive but not for
those about which he is doubtful.

The weight of the precious metal is determined by water
in two ways: (i) The article in question is immersed in a
vessel containing water and the level of the water is marked.
Then equal weights of the precious metal and of the alloy in
question are immersed and the level of the water is again
marked for each. If the mark for the article is, for in-
stance, equally distant from the other two marks, then the
alloy and the precious metal are half and half, and similarly
for other proportions. (2) The article in question, which,
for example, weighs 10 dirhams, is immersed in the water
and the level is marked. Then the weight of the precious
metal and of the alloy which will displace the water to the
same level are successively determined. If then the weight
of the precious metal is 12 and of the alloy 8 dirhams, it is
clear that the proportion is half and half.

Articles of Trade (furud al-tijarah).'1 The Arabic word
for article is 'uriid, plural of 'arad, or 'ard, meaning wealth
in general except gold and silver. According to Abu
'Ubayd, 'urild applies to every thing which is not meas-
ured by volume or weight and is not animal or real
estate (laqar). The author of the Path2 approves of the
first definition because every thing except gold and silver
may become an article of trade and pay zakat as such. This

', p. 169; Utnm, p. 39; Zarqani, p. 51. 2 P. 165.

THE ZAKAT TAXES 271

is also the Malikite view.1 The author of the Majnta', on
the other hand, finds the first definition too broad and pre-
fers the second, but is willing to allow for animals and in-
clude them in the definition, since animals also, even when
they are sawa'im, may become articles of trade. What-
ever may be the views of the Mohammedan doctors on the
meaning of the word 'uriid, it seems clear that it covers
every article except gold and silver, since every article ex-
cept those two may become an " article of trade " and pay
zakat as such. In other words, even real estate comes under
'urud, for as the author of the Durr 2 rightly remarks, the
fact that a piece of land subject to kharaj, for instance, does
not pay the trade zakat, does not prevent it from being an
article of trade, since it is merely the result of the desire
not to have the same article subject to two taxes at the same
time.

According to al-Shafi'i, the zakat of trade articles is based
on the practice of the califs Omar I. and Omar II.8

All articles which come under the description of 'wrudf
whether or not they are otherwise subject to zakat, as
sawa'im animals, and mules and asses, are subject to the
sakat of trade as soon as they become " articles of trade ".
An article technically becomes one of trade if there ha$
been with regard to it an intention of trade coupled with an
act to bear the intention out. This requirement is because
of the general legal principle that, intentions, in order to be
effective, must be coupled with and, so to say, perfected by
an act. The word act is here used in a technical sense,
meaning the commission of an act as well as its omission.
Either one of these two kinds of acts may complete the in-
tention. According to the Path,4 the rule in this respect is

1 Kharashi, p. 99. » P. 138.

1 Um*t, p. 39. 4 P. 124.

272 MOHAMMEDAN THEORIES OF FINANCE

that in the acts of omission (a'mal al-turuk) mere intention
is sufficient, but that in acts of commission (a'mal al-ja-
wdrih) mere intention is not sufficient for the act to be con-
sidered complete but that the intention must be coupled
with an act. For example, a person who is resident (mu-
qim) may not be legally considered as a traveler (musafir)
if he merely intends to undertake a journey, while a person
who is already traveling becomes a resident by merely in-
tending so. There has been a difference of opinion among
the Hanifite doctors as to whether the act needed to com-
plete the intention of trade may be any act or whether it
must be exclusively an act of trade, an act of trade being
exchange of wealth against wealth for profit. For instance,
if a person acquires some property through gift intending
it for trade, according to Abu Yusuf the property becomes
an article of trade, because the intention has been coupled
with an act, namely, the acceptance of the gift. According
to Muhammad Ibn al-Hasan, however, the property does
not become an article of trade because the intention has
not been coupled with an act of trade. The ground for
the first view is that, properly speaking, intentions should
be effective by themselves, even though unaccompanied by
an act, because the Prophet said : " The intention of the
believer is better than his act ". However, as intentions,
being mental, are concealed, they cannot become in the nature
of things effective unless borne out by an act. The ground
for the other view is that an intention of trade, for example,
does not become evident unless the act which is to bring out
the intention is also one of trade. The net result of these
differences is summarized in the 'Inayah x as follows :

(i) What is inherited, even though intended for trade,
does not by unanimous opinion become an article of trade,

1 P. 125.

THE ZAKAT TAXES

273

because in this case the act is wanting. This becomes clear
when it is remembered that in Mohammadan law inheritance
is compulsory and takes effect without and in spite of the
will of the heirs who cannot refuse to be heirs.

(2) What is acquired against a consideration of wealth
(nidi), e. g., through purchase, location (ijarah) or loan.1
Such acquisitions become articles of trade if intended for
trade, since there would then be in them both the intention
and the act of trade. This is also unanimously agreed upon.

(3) What is acquired for a consideration that is not
wealth (mdl), such as the prices of marriage (mahr) di-
vorce (khul'), and composition from the right of retaliation
for murder (badal al-sulh fan dam al-'amd), or what is ac-
quired for no consideration at all, such as gifts, alms and
legacies. According to Abu Yusuf wealth acquired in these
ways comes under the description of articles of trade if in-
tended for trade, but it does not so come according to
Muhammad Ibn al-Hasan.

According to the Shafiites,2 only property acquired for a
consideration, even though one of a non-financial nature,
such as marriage and divorce, may become an article of
trade by being so intended. The Malikite view is like the
Shafiite except that it requires the consideration to be finan-
cial, /. c., other than marriage, etc.9

According to the Path? the above applies only to articles
in regard to which an intention of trade is valid, namely,
articles other than land, for in land intention of trade is
not valid. If, therefore, a person should buy a kharaj or
tithe land in order to trade in it, he does not pay for this
land the sakat of trade but only tithe or kharaj because it
is not lawful to tax a person twice by reason of the same

1 Durr, p. 134.

1 Minhsj, p. 251 ; cf. Utnm, p. 40.

* Kharashi, and 'Adawi, p. 99.

4 O T -.-

274 MOHAMMEDAN THEORIES OF FINANCE

cause, — ownership of land in this instance. However, ac-
cording to Muhammad Ibn al-Hasan, a tithe land bought
for trade pays both the zakat of trade and the tithe. Ac-
cording to al-Shafi'i,1 land may become an "article of trade"
and pay the zakat of trade, provided there is not grown
on it a crop which is subject to tithe, as in that case only
tithe is levied on it.

The intention 2 must be present at the time of the act,
otherwise it has no effect. If therefore one should buy a
slave and later intend him for trade, the slave does not
become a slave of trade until he is actually traded in (tas-
arruf), because only then will the intention and the trade
have been coupled together.

If there was no intention whatever at the time of pur-
chase, the article is considered to have been intended
for personal use (qunyah), for the presumption is that an
article, unless expressly intended for trade, is bought for
personal use.3 On the other hand, an article intended for
trade becomes an article of trade even if it was also in-
tended to be used personally, or rented (gallah) meanwhile
before its sale.

An article of trade continues to be so until it is intended
for other than trade, whereupon it at once ceases to be an
article of trade, although the intention to trade has not
been confirmed by an act, because in this case the act is one
of omission (of trade) and therefore mere intention is suf-
ficient.4 If afterwards he intends again to trade in that
article, it does not become an article of trade until after it
has been actually disposed of.

The intention of trade may also be implied. For ex-

1 Umm, p. 41 ; Muzani, p. 244 ; cf. Wajls, p. 96.

* Jam?, p. 312; Durr, p. 134; Umm, p. 40; Kharashi, p. 99.

8 Kharashi, p. 99. 4 Cf. Umm, p. 40.

THE ZAKAT TAXES 2?$

ample, if one buys an article with a trade article, or if one
rents his house which was intended for trade for an article,
the articles received constitute articles of trade even if they
have not been intended for trade.1 Concerning the case of
articles received as the rental of articles intended for trade,
however, there is also a report to the contrary. The theory
in this case is that as the article given away was one of
trade the price obtained for it becomes substituted (boded)
for it and so no new intention of trade is necessary.

A few examples from the ' 'Alamkiriyyah 2 will make clear
what is meant by intention of trade. Thus if one should
buy brass pots in order to rent them he does not pay sakat

n them just as he would not pay sakat on houses intended
for renting. Similarly if a spice grocer should buy glass
bottles or sacks in order to rent them to the people there is
no zakat on them because they are bought for their use
and not for trade. Likewise the baker by buying wood or
salt for baking is not subject to zakat, but if he buys sesame
and makes it into bread he pays zakat for it. However, if
a person other than a trader buys food for a trade slave
he owns, he does not pay zakat for it. A trader (mudarib),
on the other hand, would do so.

Malik, unlike the Hanifites and al-Shafi'i, distinguishes
between the person who buys things for speculation (irti-
sad al-aswaq) by selling them when he thinks the price is
highest, and the person who, like the store-keepers, buys
and sells (man yudiru mdlahu) without waiting for specu-
lation.3 According to Malik the merchant who turns over
his stock without waiting (al-mudlr), assigns a month of
the year as the time for the payment of his zakat and in

1 'Alamkiriyyah, p. 244; Durr, p. 134.
'P. 253.

*Muwattd', p. 109; Mudawwanah, pp. u, 14; Kharashi, p. 101 ;
Zarqani, p. 52; Mabsut, p. 190, 1. — 9; Ibn Rushd, M., p. 212.

276 MOHAMMEDAN THEORIES OF FINANCE

this month he appraises his trade stock and adds to the total
the claims he expects to collect and pays zakat for the whole.
If however he is merely a speculator (muhtakir), he does
not pay zakat for the articles he bought with the intention
of selling later for profit every year but only once for all
when he turns them into cash by sale, — even if meanwhile
many years should have passed from the time of their pur-
chase. Just as in the case of merchandise he does not pay
zakat until he has sold them, so in claims, he does not pay
zakat on them until he has collected them. This is based
on the hadith : " There is zakat only on the produce of the
land (harth), on gold and silver ((ayn), and on animals."
In other words there is no zakat on the articles of trade
and the claims until they have become gold or silver by
sale and collection, respectively. This distinction between
the two kinds of trade, however, applies only to the zakat
of trade articles and such claims as have not arisen in con-
sequence of loans (qard), for with respect to the zakat of
loans (of gold and silver), traders and others are alike.1

According to Abu Hanifah the articles of trade are ap-
praised in gold or silver coins (naqd) according as one or
the other way is the more profitable to the poor, that is, ac-
cording as the nisab is attained by appraising in terms of
one or the other. Some said that the advantage of the poor
is considered even when the nisab is reached by appraising
in terms of either, namely, that it is appraised in terms of
the more current (arwaj} of the two, and that if both have
the same degree of currency, the owner has the choice of
appraising in either.2

According to Abu Yusuf, if the article was bought for
coins (naqd} it is appraised in terms of that coin, and if it

1 Mudaitnvanah, p. n; Kharashi, p. 101, 1. 10.
8 'Alamkiriyyah, p. 252.

THE ZAKAT TAXES

177

was bought for other than coin, it is appraised in terms of
the most common (aglab) coin. However, according to
Muhammad Ibn al-Hasan it is appraised in terms of the
most predominant (aglab) currency in every case.1

According to the Shafiites,2 articles of trade, if bought
for currency (naqd), are appraised in terms of that cur-
rency, otherwise they are appraised in terms of the common
(galib) currency. If there are two such currencies, the ap-
praisal is made in terms of the currency which results in a
.iilfte nisdb. If the nisab is reached in either case, the
appraisal is made in terms of the more profitable of the two,
or at the owner's choice.

In appraising in terms of coins, the appraisal is made only
in terms of coins which themselves are subject to zakat,
namely, coins in which the precious metal predominates.3
Furthermore, the appraisal is made in terms of the currency
of the town where the property subject to zakat is situated.
If such property is situated in the desert the appraisal is
made in terms of the currency of the nearest town.4

Claims (duyun)* According to Abu Hanifah, claims
are strong (qawi), medium (ivasat), or weak (da' if).
Strong claims are those which have arisen in considera-
tion of an article of trade or a loan, that is, property which
would have paid zakat at the end of the year if left in the
creditor's ownership. Medium claims are those that arise
in consideration of property which would not have paid
zakat if left in the creditor's ownership, c. g., personal
clothing or the rental derived from a personal slave. Weak

1 Majma', p. 169.

*Minhdj, p. 252.

8 'Alainkiriyyah, p. 251, 1. — 9.

4 Majma', p. 169.

ra/fna', p. 159; Mabstit, p. 194; Jdnii', p. 301.

278 MOHAMMEDAN THEORIES OF FINANCE

claims, finally, are those that arise in consideration of other
than wealth (mat), such as the price of marriage or divorce,
or arise for no consideration at all, such as inheritance and
bequests.

In strong claims, the zakat is due at the end of the year,
whether or not collected, but its payment is made only after
every collection of a minimum of 40 dirhams or more at
the rate of i dirham for every 40 dirhams collected.

In medium claims, in one report from Abu Hanifah, the
zakat is still due at the end of the year but its payment be-
comes obligatory only after a nisab of 200 dirhams has been
collected, at the regular rate of 5 for 200 dirhams. In an-
other report from him, there is no zakat on such claims
until they have been collected and a year has passed.

In weak claims the zakat is not due until a nisab of 200
has been collected and a year has elapsed.

According to Abu Yusuf and Muhammad Ibn al-Hasan,
however, all claims are alike excepting those consisting of
the price of manumission (badal kitabah) and the price of
blood (al-diyat fala }l-aqilah). If they are of nisab quan-
tity and the year has elapsed the zakat becomes due on them,
but it is not paid before collection. When, however, part of
it is collected, no matter how little, its zakat is paid. As re-
gards the two claims which formed an exception to the
rule, their zakat is due only after a nisab has been collected
and a year has elapsed. This difference of opinion between
the disciples and Abu Hanifah arises from their different
method of classifying claims. The disciples classify the
claims into absolute (mutlaq) and defective (naqis), and
consider as absolute all but the two claims mentioned.

The above controversy applies only in case the creditor
does not have in his possession other wealth (mal) when
he collects the claim, for in that case, by unanimous opinion,
he adds the claims collected to the wealth he already pos-

THE ZAKAT TAXES 279

sesses and pays their zakat together with that of the wealth
in question.

According to al-Shafi'i all claims are alike subject
to zakat which must be paid when the year has elapsed,
even if the claims have not been as yet collected. His
argument is that the creditor's property became a claim by
his will and through an act of his and therefore there is
no reason for delaying the right of the poor, by requiring
another year to elapse after their collection. The Hanifite
reply is that the claims before collection are not as yet in
the zakat payer's possession, and therefore he is not ob-
liged to pay their zakat until after he has collected them,
just as the wayfarer is not required to discharge the zakat
of property he left at home, except as he gradually receives
it. According to the Minhaj,1 the view above ascribed to
al-Shafi'i is his more recent view, and applies only to claims
of gold and silver and commodities (fard), but not to claims
of animals, nor to debts which may be repudiated (gayr
ICizim), such as the price of manumission. The zakat of
the claims in question is paid when due before their col-
lection, provided the claims are already due and their col-
lection is possible, for if their collection is not possible by
reason of the debtor's being in poverty or otherwise,
they are like usurped property, namely, their zakat is paid
after their collection. If the debts have not yet fallen due
(mu'ajjal), the prevalent Shafiite view is that they are like
usurped property, but some hold that their zakat is paid as
soon as it falls due, even though before their collection.

Finally, according to Malik and his followers,2 there are
three classes of claims: (i) Those accruing in considera-
tion of property which is not trade property, such as prop-

1 P. 261.

* Mudawwanah, pp. 16, 18, 27-8; Dardir, pp. 121-3; Kharashi, pp. 93-9,
IOT ; Tbn Rushd, B., p. 249.

280 MOHAMMEDAN THEORIES OF FINANCE

erty bought for personal use, or inherited or received as
gift, or such as the price of manumission or blood. These
claims are not subject to zakat, since the original property
in consideration of which they have accrued is not subject
to zakat. But if a nisab of these claims is collected and re-
mains in the possession of the creditor for a year, it pays
zakat as any other property would, provided the claim col-
lected consists of gold or silver. (2) The claims accruing
in consideration of trade property or in consequence of
loans of gold or silver. These claims are subject to zakat
for one year only, even if in the interim before their col-
lection, from the time their zakat was last paid on the origi-
nal property, or from the time such property was acquired
by the creditor, there elapsed several years. But this zakat
is not discharged until after a nisab of the claim has been
collected. When once a nisab has been collected and its
corresponding zakat paid, the zakat of later collections, no
matter how little they are, is paid as they are collected,
even if meanwhile the nisab first collected should have been
disposed of or lost. For instance, a person who loaned 40
dinars after possessing them for 6 months pays no zakat
on the 20 dinars which he recovers after 5 months, until
after he has possessed them for another month to complete
the year. If he should recover them after 5 years, he at
once pays the zakat of the 20 dinars. If, on the contrary,
he. should recover after 5 years, first 5, then 5, which he
spends and then 10, he pays immediately zakat for the 20
for one year only, and if later he should recover another
dinar, he at once pays its zakat, even if meanwhile the 20
dinars should have been spent. In the same case, if instead
of loaning the entire 40 dinars he had only loaned 20, and
meanwhile paid zakat on the remaining 20, he would then
have to pay zakat for any collection he made, even if it be
one dinar, and even if the 20 dinars he had kept were mean-

THE ZAKAT TAXES 28l

while destroyed. The same would be true if he had loaned
the entire 40 dinars, but had meanwhile acquired 20 dinars
which he had in his possession for one year and had paid
zakat on them. If, on the other hand, he had acquired only
10 instead of 20 dinars, he would not pay zakat on his collec-
tions until after he had collected 10 dinars from his claim,
and paid zakat on the 20. In other words, the principle
here is that before he begins to pay zakat on his collections,
he must have had in his ownership at least 20 dinars, for
an entire year, whether all of these 20 dinars have been c 1-
lected from the claim or whether they have come into his
possession otherwise. It must be stated that the above
applies only if the receipts were in gold or silver. (3) The
claims of the second class, excepting those arising from
loans of gold and silver, when they have accrued to mer-
chants, such as the storekeepers (mudlr), who buy and
sell their stock without waiting for a rise in price in order
to speculate. Such persons pay the zakat of their claims
yearly together with the zakat of their stock in trade, irre-
spective of whether or not they have collected them, pro-
vided, however, that these claims are already due and their
collection is possible. If the claims are not yet due, or if
they are due but consist of commodities, their zakat is paid
on the basis of their market value.

If the creditor delays the collection of his claims in order
to avoid the payment of zakat he pays zakat for every year
which elapsed before its collection, unless the claim arose in
consideration of no property or property that is not con-
sidered wealth (mat), such as the price of manumission.

According to the Durr,1 if the creditor, after the lapse of
a year, waives his claim he does not pay zakat for it,
whether it was strong or weak.

1 P. 139.

282 MOHAMMEDAN THEORIES OF FINANCE

Rentals and Wages (ujrah). There are three reports
from Abu Hanifah concerning the zakat of rentals and
wages. According to one report, he likened them to the
marriage price, in that both are not the price of wealth
itself, but of its use. In a second report, he likened them
to the price of every-day clothing, in that, like it, they are
not subject to zakat. In a third report, the most reliable of
all, the rental of a business office or the wages of a trade
slave have been likened to the prices of the same. Conse-
quently, according to this report, whenever 40 dirhams are
collected on account of the rental or the wages, their cor-
responding zakat is paid, just as in the case of the price of
trade articles. In other words, Abu Hanifah considered
the price for the use of a thing similar to the price for the
thing itself.1 If, however, the rental is derived from a
house which is not intended for trade, and the wages from
a slave who is not intended for trade, then no zakat is paid
on them until a year has passed after their collection.

According to the Shafiites,2 the zakat is paid on such part
of the rental collected as has already accrued. For instance,
if a person should rent a house for two years for 40 dinars
and receive them, he pays zakat at the end of the first year
for the 20 dinars only, because the other 20 dinars have not
accrued to him yet and might be reclaimed by the tenant if,
for example, the house should be destroyed at the end of
the first year.3

SECTION IV

The Zakat of the Produce of the Earth or the Tithe 4

1 Mabsiit, p. 196; Path, p. 123.

1 Minhdj, p. 263 ; Ansari, p. 357.

3 For the Malikite view on the matter, see supra, pp. 223-5.

* Majma', p. 175; Path, p. 186; Jdmi', p. 325; Durr, p. 142; Durar, p.
122; 'Alamkiriyyah, p. 260; Umm, p. 29; Mawardi, pp. 202-6; Minhdj,
p. 238; Zarqani, p. 67; Mudawwanah, p. 105; Dardir, p. 116.

THE ZAKAT TAXES 283

The Hanifite doctors treat tithe under zakat l because
they consider tithe as the zakat of the produce of the earth.
Some of them have nevertheless raised the question as to
whether tithe is really a kind of zakat. A few maintain
that tithe was called zakat because, in the opinion of Abu
Yusuf and Muhammad Ibn al-Hasan, as in zakat so in tithe
also, the conditions of nisab and lapse of year are required.3
The author of the Majma' objects to this construction
and claims that the tithe was called zakat because it was
disbursed like zakat. The author of the 'Inayah says that
the extension of the name cakCit to tithe is by way of meta-
ph< T.8 The author of the Path,* on the other hand, puts a
strong plea for the identity of zakat and tithe. He remarks
that tithe is zakat ; so much so that it is disbursed the same
way as zakat, and that the most that can be said concerning
the controversy over the nature of zakat is that it turns on
the question whether or not certain of the conditions of
zakat apply to certain kinds of zakat. But he adds that
whatever the answer to that question may be, it evidently
does not prevent tithe from being a kind of zakat. The
Hanifite doctors are nevertheless unanimous in saying that

1 Some Hanifite texts treat tithe under the caption of Zakdt of the
Produce of the Earth (sakdt al-khdrij), while others treat it under
that of Zakdt of the Crops and Fruits (sakdt al-suru wa 'l-thimdr).
Aside from cases like the foregoing, the Hanifites, even those who
consider tithe as identical with zakdt, use the word 'ushr (tithe) in
order to refer to the tithe; and, on the other hand, when they use the
word sakdt they mean by it the sakdt of animals, gold and silver, and
articles of trade only. The Shafiites and Matikites, on the contrary,
denote by sakdt the tithe, as well as the other kinds of sakdt; and so,
when they want to distinguish the tithe from the others they use some
such expression as sakdt of crops and fruits, or sakdt of produce
(harth).

1 Majma', p. 175.

s 'Indyah, p. 186; Path al-Mu'in, p. 401.

4 P. 186.

284 MOHAMMEDAN THEORIES OF FINANCE

there is a difference between the two, namely, that while
zakat, — that is, the kinds of zakat so far treated, — is an act
of worship pure and simple, tithe is primarily a financial
charge (ma'ilnah) although it participates in a way in the
nature of worship ; and that this is the reason why tithe was
treated last of all. From this rather important difference
follow certain minor ones, such as, that unlike zakat, tithe
is levied on property owned by minors, insane persons,
waqfs, etc. In many respects, however, the tithe is like the
sakat. It might be advanced as a general proposition that
unless the doctors indicate the contrary, the presumption is
that tithe is like zakat, especially as regards its religious
aspects, and that the differences between the two are practi-
cally limited to the political and financial field, such as the
state's right of collection.1 The Shafiites and Malikites, on
the contrary, both treat and consider the tithe as an integral
part of, and identical with, the zakat. Consequently, what
they say on " zakat " applies equally to the tithe and to
the other kinds of zakat.2

The tithe is a fard by reason of evidence found in the
Koran, the sunnah, the ijma' , and reason, (i) In the
Koran : there are the verses : " and on the day of its har-
vest give its right (i. e., the right that attaches to it) ",3
and : "Bestow alms from the choice part of what you have
earned and we have made grow for you from the ground."
Although some claim that the zakat is collected after the
harvest and therefore the right mentioned in the verse refers

1 Path al-Mu'in, p. 401; Bahr, p. 255; Kifdyah, p. 172; Kasani, p. 37;
cf. also Defteri Muqtasid (p. 54) on nature of "tithe" paid by dhim-
mis.

2 Cf. Mawardi, pp. 204-5 ; Minhdj, p. 238 ; Wajiz, p. go ; Kharashi,
p. 71.

8 Koran, chap. 6, verse 142.
4 Koran, chap. 2, verse 269.

THE Z4KAT TAXES 285

to the alms given to the poor at harvest, the majority have
agreed ' that it refers to the zakat. The ground advanced
by those who hold the opposite view is the fact that
the verse in question was revealed in Mecca before the
zakat was yet made a fard. (2) In the sunnah : there is the
had'ith : " In what has been irrigated by Heaven, one-tenth,
and in what has been watered with buckets or waterwheels,
one-half of one-tenth." (3) In the ijma' : the entire Mos-
lem community has agreed on tithe's being a fard. (4)
It follows from reason: as in the case of zakat, the
giving of tithe to the poor is an act of gratitude for the
blessing of property, and, furthermore, it enables the poor to
perform their religious obligations and inculcates in the
giver habits of generosity while it destroys those of nig-
gardliness.2 Al-SharVi 3 bases the tithe on the practice of
the Prophet, who took sadaqah from wheat, barley, and
maize ( dhurah ) .

The cause of tithe being a wdjib is the actually productive
land — unlike the kharaj whose cause is the absolutely pro-
ductive land, whether actually or only potentially so. There-
fore the tithe is due only when there is a produce, so much
so that when the produce is destroyed by an act of God, the
tithe lapses.

According to Abu Hanifah, the produce of the earth as
well as the fruits of wild trees are subject to tithe, no
matter what their quantity is and irrespective of whether
the requirements of nisab, durability, and lapse of a year
have been met. Hence green vegetables pay tithe though
they may not be preserved for a year.4 According to Abu

1 Cf. Baydawi : Yahya, pp. 88 et seq.

3 Kasani. p. 53.
s Umm, p. 29.

4 Durr, p. 142.

286 MOHAMMEDAN THEORIES OF FINANCE

Yfisuf and Muhammad Ibn al-Hasan, however, the tithe is
levied only on such produce of the earth as may be con-
served for at least a year without much care and manage-
ment, and amounts to at least a nisab. Therefore, in the
opinion of the disciples, garlic, onions, apples, plums, green
vegetables and other produce which cannot be preserved
for a year, do not pay tithe at all. On the other hand, pro-
duce that may be preserved for a year, such as dates, grapes,
grains, etc., pays tithe only in case it amounts to 5 wasqs,1
— if it is the kind of produce measured by wasqs. For
if it is the kind of produce that is not measured by wasqs f
such as cotton, saffron and sugar, it pays tithe, according to
Abu Yusuf, if its value amounts to the value of 5 wasqs
of the least valuable produce measured by wasqs, e. g.,
millet, and according to Muhammad, if its quantity amounts
to five times the highest unit of measure by which produce
of its kind is measured. Thus cotton pays tithe when it
amounts to 5 himls, and saffron when it amounts to 5 manns,
the himl and the mann being the highest units of measure
by which cotton and saffron are respectively measured.
The ground for Abu Yusuf 's view is that since the shari'ah
specifications in regard to quantity cannot be applied here
literally, one figures out on the basis of value, as was done
in the case of articles of trade, and the value of the least
valuable produce is taken into consideration in order to
benefit the poor. The ground for Muhammad's view, on

1 The wasq (also wisq) is a measure of capacity, about a camel's
load, holding 60 sd's, of the kind used by the Prophet, each sa being 4
mudds. The mudd being, according to the people of 'Iraq and Abu
Hanifah, 2, and, according to the people of Hijaz and al-Shafi'i, i^
rails (or ritls), the wasq is 480 and 320 rails, respectively. Himl, a
measure of weight, is 300 manns (plural: amndn). The mann (also
mana, plural: amna) is 2 rails (rail also being a measure of weight),
the rail 12 uqiyyahs (plural: awdqi}, or 20 istdrs, or 128 dirhams (sep-
timal weight). The uqiyyah used in hadiths is 40 dirhams. (Cf. Ma-
wardi, p. 203; Minhdj. p. 238; Kharashi, p. 71).

THE ZAKAT TAXES 287

the other hand, is that the wasq was considered a basis for
produce measured by wasq, because the zvasq was the high-
est unit of measure in that produce, and therefore the spirit
of the law requires that for produce that is not measured
by wasqs the highest unit of measure applicable to it be
considered.

There is no tithe on firewood, Persian cane and dry
herbage (hashish), because ordinarily they are not grown
as a means of deriving profit from the ground. They
would therefore be subject to tithe if the land were specially
used for growing them. Sweet rush and sugar cane are,
however, subject to tithe. Palmboughs and straw, grains
that are not sown for their own sake, such as the seeds of
cucumbers and melons, and secretions from trees, such as
resin and tar, are likewise exempt from tithe. Olives and
safflower and their seeds however pay tithe.

Of fruits, according to the Shafiites,1 only dates and
grapes, and of crops, only those grown by men and stored
away as food pay tithe, provided they amount to at least
5 wasqs, excepting rice, etc., where the nisab is 10 wasqs
in order to allow for the husk. The crops which pay tithe
are wheat (hintah), barley (sha'tr), rice, lentils ('ados),
millet (dukhn), beans (baqila or lubiya'), peas (himmas),
maize (dhurah), and their varieties, and according to the
older view of al-Shafi'i, also olives, saffron, honey, etc.
According to the Malikites,2 the tithe is levied only on dates
and grapes, the grains (habb), and the oil-bearers (dhawal
al-suyut), provided they amount to at least 5 wasqs, no al-
lowance being made for the husk (qishr). The grains in-
clude 14 kinds, the 7 so-called sheath-bearers (qatani),

1 Minhdj, p. 238; Wajis, p. 90; Mawardi, pp. 202, 204; Mugni, p. 372;
Ansari, p. 367; Umm, p. 29.
'Kharashi, p. 71; Dardlr, p. 116.

MOHAMMEDAN- THEORIES OF FINANCE

such as beans, peas, and lentils, as well as wheat (qamh),
barley, rice, millet, maize, and their varieties. The oil-
bearers include olives, sesame, etc.

According to the Shafiites and the Malikites,1 following
the Prophet's precedent, dates and grapes are appraised by
the state as soon as they become ripe and proper for eating ;
and the owners are required to pay their tithe later in dry
dates (tamr) and raisins (zabib}. The Hanifites and others
opposed this practice on the ground that it is a curtailment
of the owner's rights and because the precedent of the
Prophet concerned the dates of the people of Khaybar
wrho were Hebrews and could not therefore apply to the
zakat of Moslems, the only hadlth that might support such
a construction being open to impeachment. Moreover, ap-
praisal is in reality an exchange of fresh dates which are
yet on the trees against dry dates to be delivered in the
future and involves a difference of quantity (tafadul) as
well as a term sale (nastfoh), both of which are forbidden
as usurious (riba).2 Al-Shafi'i justifies this practice on the

1 Umm, p. 27 ; Minhdj, p. 241 ; Wajiz, p. 92 ; Mawardi, p. 203 ; Khara-
shi, p. 78; Ibn Rushd, B., p. 244; Dardir, p. 117; Muwatta, p. 117.

2 Riba (surplus) is technically defined as the excess stipulated in
favor of only one of the two parties to an exchange of wealth (mdl)
for wealth without a consideration ('iwad). This excess may consist
in the granting of a term for delivery (nasl'ah) or, in the exchange
of homogeneous goods only, in an excess of volume (kayl} or weight
(wasn). Thus exchange of gold for gold or silver to be delivered in
the future, and exchange of gold for gold, or of silver for silver in
unequal quantities are usurious acts. Usury is forbidden in the sunnah
with regard to 6 definite articles, which are interpreted variously. The
Hanifites interpret them as the articles sold by volume (makil) or
weight (mawsun}. The Shafiites take them to mean gold and silver
and foodstuffs (mat'umdf). Finally, according to the Malikites, in-
equality in quantity is forbidden with respect to gold and silver and
sustaining foodstuffs (muqtdt) that are stored away for future use
(mudakhkhar), and future delivery, with respect to gold and silver and
foodstuffs. (Tech. Diet., p. 593; Qudiiri, p. 45; Path al-Qarib, p. 314;
Tbn Rushd, B., vol. ii, p. 106; Dardir, vol. ii, p. 14.)

THE ZAKAT TAXES 289

ground that it inures to the interests of both sides, since by
it the owners are allowed to eat their fruits when they are
fresh yet or to sell them and fetch higher prices, and, on the
other hand, the beneficiaries are secured a tithe on the entire
produce. According to al-Mawardi, the owner after the
appraisal may assume responsibility for the tithe on
the basis of the appraisal and be free to dispose of
his fruits as he pleases or he may refrain from doing so
and in that case the produce is a sort of trust which he may
not touch until he has paid its tithe. According to the
prevalent Shafiite view the owner is not responsible for the
tithe on the basis of the appraisal, unless he has expressly
assumed this responsibility, but certain Shafiites expressed
the view that it is not necessary expressly to stipulate this
and that by the very fact of appraisal the owner becomes
responsible for the tithe. The Malikite view seems to agree
with the latter view. No allowance is made in the appraisal
for the fruits that may be eaten by the owner or by birds
and animals and a single appraiser is sufficient.

For produce which was irrigated by rain or running
water, and for wild fruits, the rate of tithe is one-tenth of
the produce. On the contrary, for crops watered by water-
buckets or waterwheels, the rate is one-half of one-tenth.1
In either case the rate applies before deduction of the ex-
penses of production, for the hadith on which the rate of
tithe is based does not allow for any such deduction.

According to Abu Hanifah, the amount eaten from the
produce before the deduction of the tithe is also taxed, but
according to another report from him, no tithe is received
for the amount consumed by the owner if the amount was
reasonable. According to Abu Yusuf the amount necessary
for one's own and one's family's food is exempt from

1 Cf. Minhdj. p. 240; Kharashi, p. 71.

290 MOHAMMEDAN THEORIES OF FINANCE

tithe, but, according to Muhammad Ibn al-Hasan, nine-
tenths of what he consumed is taxed. Finally, according
to al-Timirtashi, one is not allowed to consume anything
at all before paying his tithe, but others say that this ap-
plies only when he is determined not to pay his tithe, for
if he sincerely intends to pay his tithe, he may consume
nine-tenths of the crop, although it is preferable that he
should not.1

It is not necessary that the produce should have been
attended to in order that it may be subject to tithe, there-
fore the tithe is due on the produce of land that is not
owned by any one, and also on fruits that have grown in
the wilderness without any one's having cared for them.
However, according to Abu Yusuf and al-Hasan, no tithe
is due on them, because they constitute free goods and be-
come the property of the first comer. Al-Timirtashi says
that such produce and fruits pay tithe if they have enjoyed
the protection of the imam.2

The tithe is due on the produce of waqf lands as well as
on the lands of the minors, the insane, the mukatabs, the
slaves who have permission to trade (ma'dhun), and the
persons who are indebted; but according to al-Shafi'i, the
land of the mukatab and waqf lands whose beneficiaries are
not definite persons are exempt from zakat. His reason for
this is that tithe is a kind of zakat and is levied with respect
to the owner of the property. The Hanifite argument is
that like kharaj (land-tax) tithe is a charge on the produc-
tive land and that therefore it strikes the produce, no matter
who the owner is.3

Honey, like the produce of the earth, is subject to tithe,

1 Jdmi', p. 325.

* Jdmi't ibid.; Majma", p. 176; Durr, p. 142.

zMabsut, part iii, p. 4; cj. Ansari, p. 349.

THE ZAKAT T.

291

according to Abu Hanifah, no matter how small or how
large its quantity. There are many had'iths from the
Companions to show that the Prophet, and later the califs,
levied the tithe on honey. There is also a hadith from the
Prophet, reading. "In honey one-tenth ". Al-Shafi'i, in his
more recent view, and Malik exempted honey from tithe
the analogy of silk. The Hanifite reply is that silk-
worms eat leaves which are not subject to tithe, unlike the
bees which collect the honey from flowers and fruits on
which there is a tithe. However, the author of the Majma'
remarks that flowers are not subject to tithe.

Aco-rding to Muhammad Ibn al-Hasan, honey pays tithe
. -nly when it amounts at least to 5 faraqs, because the faraq
is the highest unit of measure used for measuring honey.
On the other hand, in Abu Yusuf's opinion honey pays
tithe when it amounts to 10 qirbahs, because of a hadith to
that effect.1

Crops and fruits as well as honey are subject to tithe only
if they have grown or have been collected on tithe land or
tithe mountain, or, as the Durr observes with respect to
honey and wild fruits, even on land that is not tithe land,
provided it is not also kharaj land, such as mountains and
deserts, but in no case may the land be kharaj land.
Honey collected in kharaj lands pays neither tithe nor
kharaj,2 because the produce of kharaj lands is subject to
kharaj, and were the tithe also levied, it would be subject
to two taxes at the same time.3

According to al-Shafi'i, the tithe is due even on produce
grown en kharaj land, because in his view there is no in-
convenience in the collection of two taxes from the same

1 A faraq (plural, afrdq) is 36 rails (cf. al-Mugrib"). A qirbah
(water-skin) is 50 manns.
*'Indyah, p. 191.
8 Kasani. p. 57 ; Majma1, p. 1/7.

292 MOHAMMEDAN THEORIES OF FINANCE

object at the same time. His ground for this view is that
kharaj and tithe are different charges as regards nature,
cause, and object, and therefore there is no incompatibility
between them. Indeed the difference of their natures needs
no special mention and as regards their cause, the cause of
tithe is the produce and that of kharaj, the productive land,
and finally, the object of tithe is the produce and that of the
kharaj, the legal personality (dhimmah) of the owner. The
Hanifite reply is that the Prophet said : " The tithe and
the kharaj are not combined on the land of the Moslem "
and that none of the Moslem imams, whether just or tyran-
nical, ever levied other than the kharaj on the lands of
Sawad. Moreover, the cause of the tax in both cases is the
same, namely, the productivity of the land; and just as the
zakat of sawaim and trade may not be levied on the same
object so the kharaj and tithe may not be levied on the
same piece of land.1 Malik's view of the matter is like that
of al-Shafi'i.2

There is no tax on the habitations (dar) and the ceme-
teries even if they should belong to the dhimmis, because
the calif Omar exempted them from taxation. If, however,
a person, whether a Moslem or a dhimmi, transforms his
habitation into a garden, he pays kharaj in every case if he
is a dhimmi, and if he is a Moslem, he pays tithe if he
waters his garden with tithe water, and kharaj if he waters
with kharaj water.

There is no tithe on springs of tar and naphtha, and on
salt found in tithe land, nor is there a kharaj on them
when they are found in kharaj lands, since they may not
properly be called the produce of land. Some hold that
springs legally are the dependency (tabaf) of their imme-

1 Kasani, ibid.

1 Mudawwanah, p. 105 ; cf. Kharashi, p. 71.

THE ZAKAT TAXES 293

diate vicinity (harim) as regards payment of kharaj. The
immediate vicinity of springs, if the land is one of tithe
and produce is actually grown on it, pays tithe, and if it is
kharaj land, and fit for cultivation, pays kharaj, whether or
not it is actually cultivated, since the cause of kharaj is
potential rather than actual productivity.

As in the case of zakat, the obligation of tithe lapses
when the produce is destroyed accidentally. When part of
the produce is destroyed, according to Abu Hanifah, the
rest pays tithe proportionately. According to his two dis-
ciples, if the part destroyed together with the remaining
part amounts to a nisab, the tithe is collected, otherwise it
is not. According to a report from Abu Yusuf, the re-
maining part by itself must amount to a nisab , otherwise it
does not pay tithe. If a part or the whole of the produce
has been destroyed by the owner wilfully, then he pays its
tithe. In this matter the Shafiites * and the Malikites make
no distinction between the tithe and the zakat in general.
Apostasy, as in zakat, is another cause for the lapse of the
tithe obligation although al-ShafVi held the opposite. Con-
trary to al-ShafVi, death of the owner, according to the
Hanifites, is a third cause for the lapse of the tithe, unless
the deceased had willed its payment, provided, however, that
the produce was destroyed by him already. For if the
produce is still in existence, as mentioned before, the tithe
is collected from it according to the Zahir-al-riwayah re-
port.2 The ground for this view is the fact that the produce
is owned jointly by the poor and the heirs and that the
death of the owner is no reason for the lapse of the tithe.
There is, however, a report from Abu Hanifah through Ibn
al-Mubarak to the contrary.8

1 Minhdj. p. 268. 'Kasani, p. 65.

* Mabsut, part Hi, p. 50.

294 MOHAMMEDAN THEORIES OF FINANCE

If a person rents a tithe land and cultivates it, according
to Abu Hanifah, the tithe is upon the landowner, whether it
be more or less than the rental. Abu Yusuf and Muham-
mad Ibn al-Hasan, on the contrary, hold that the tithe is
paid out of the produce by the tenant. Their argument is
that tithe is a charge on the produce and the produce in this
instance belongs to the tenant, the person who rented a
land without a consideration (musta'ir} being in this re-
spect like the tenant. Abu Hanifah replies that the tax is a
charge for the use of the land, and the use here belongs to
the landowner, since he is entitled to the rental, which is the
price of the use of the land. In other words, the tenant
enjoys the use of the land in consideration of the rental he
has paid, and so he is not subject to tithe any more than the
purchaser of the produce is. Moreover, tithe is a charge
on productive land, and the land here does not belong
to the tenant. It is however a different case if the land
was leased to a Moslem for no consideration, because the
tenant in that case enjoys the use of the land for no con-
sideration whatsoever, and because the tithe, being due only
when there is a real benefit (manfafah), is not to be paid
when there is no produce. If, however, the land was
leased without a rental to a dhimmi, the tithe is paid
by the landowner, because tithe is a kind of sadaqah and
may not be paid by an unbeliever, and because the land-
owner by renting his land to a dhimmi has destroyed the
right of the poor and must be responsible (damin) for it.
Zufar, following the analogy of kharaj lands, said that the
tithe is always paid by the landowner even when the use of
the land is allowed without a rental to a Moslem.1

The members of the Taglib tribe, men, women and
children, pay a double rate, i. e., two-tenths for the tithe

1 Mabsiit, part iii, p. 5 ; cf. Mawardi. p. 206.

THE ZAKAT TAXES

295

lands they own, according to Abu Hanifah and Abu Yusuf ,
but in Muhammad Ibn al-Hasan's opinion, only one-tenth
is collected from them if the lands were bought from Mos-
lems, because, in his view, the tithe is a charge on the land
and its amount does not change with the owner.1

lMajmo', p. 177.

CHAPTER III
COLLECTION AND DISCHARGE OF THE ZAKAT

SECTION I

The Collectors

IN the earliest period of Islam, according to the Hanifite
doctors, there was no distinction between the different kinds
of property as regards the jurisdiction of the state tax col-
lector to demand the settlement of their zakat. This state of
affairs is said to have continued from the time of the
Prophet until the califship of 'Uthman who " delegated the
matter of payment (ada) to the property owners because
he feared that they would be subjected to inconvenience
and trouble in the inspection of their property by evil col-
lectors." Since then property subject to zakat has been dis-
tinguished into the two classes of apparent (amwal zahirah)
and non-apparent property (amwal batinah). Apparent
property consists of the animals * and of such " non-appar-
ent " property as has become " apparent ". Non-apparent
property, on the other hand, consists of the remaining
classes of property subject to zakat, namely gold and silver
and the articles of trade, so long as they have not become

1 Although later doctors (cf. 'Indyah, p. 171; Majma', p. 172, etc.}
in this connection use the word sawaim, implying thereby that animals
other than sawd'im, for instance, animals kept for trade, are not ap-
parent property, al-Sarakhsi (Mabsut, p. 170) expressly states that such
animals -are apparent property. Al-Kasani (p. 35), by using in this
connection the word mawdshi (animals), seems to hold the same view;
on the Shafiite side, al-Mawardi (p. 195) and the Mugni (p. 401) do-
likewise use nawdshi, and na'm (animals) respectively.
296

COLLECTION AND DISCHARGE OF THE ZAKAT 297

" apparent ". It will be noticed that no mention is made
here of the tithe. This is because, as already explained in
the section on Tithe, the Hanifites * consider tithe more
or less different from zakat proper, using zakat to denote
in particular the zakat of animals, gold and silver, and ar-
ticles of trade. The Hanifites do nevertheless assimilate
tithe, so far as the owner's right to disburse it himself and
the state's right to collect it are concerned, with the zakat
of apparent property.2 Thus the Kifayah quoting from the
Tafariq says that the owner may himself disburse his tithe
and the zakat of his apparent property to the poor, as be-
tween him and God, although the imam in both cases col-
lects the tax from him again. There is, however, a differ-
ence between the two, namely, that while the imam may not
collect the zakat by force, he may do so with the tithe. In
such case the tithe obligation is discharged both as towards
God and the state but the owner earns no religious merit for
having failed to pay his tithe of his own free-will. In the
case of zakat, however, the imam has no right to collect by
force, for should he do so, the zakat obligation of the owner
remains nevertheless undischarged.

According to the Shafiites,3 apparent property consists of
animals (na'm), crops and fruits (mu'ash-sharat), and
mines; non-apparent property, on the other hand, consists
of gold and silver (naqd&n), articles of trade, and treasure-
trove.4

1 Bahr, p. 255; Kasani, p. 371 Path al-Mu'in, p. 401. The last work,
however, in another passage (p. 373) quotes Nuh Efendi to the conr
trary, namely that crops and fruits are apparent property.

1 Kifdyah, p. 172; Kasani, p. 37.

8 Mugni, p. 401 ; Mawardi, p. 195.

4 The discrepancy between the two schools is due to their different
interpretations of the meaning of zakdt as explained in the chapter on
Public Treasury.

298 MOHAMMEDAN THEORIES OF FINANCE

The zakat of the animals is collected by special collectors
called safi (plural su(at). The zakat of non-apparent prop-
erty, on the other hand, is disbursed by the owners them-
selves directly to the zakat beneficiaries, unless the non-
apparent property has become " apparent " by being taken
out of the cities into the country, in which case their zakat
may no more be disbursed by the owners themselves to the
beneficiaries but must be paid to the public collectors sta-
tioned on the highways, the 'ashirs, who have equal jurisdic-
tion over both apparent and non-apparent property which
passes under their inspection.

The right of the state itself to collect the zakat in order
later to disburse it to its lawful beneficiaries, according to
the Hanifite doctors, is based on the protection (himayah)
afforded by the state to the property. In the case of ani-
mals, state protection is needed all the time and therefore
their zakat must be always paid to the collector. As re-
gards articles of trade and other non-apparent property,
" when the Moslem takes his stock of trade out into the
country he needs the protection of the imam and therefore
the latter has the right to collect the zakat from him ".1

According to al-Mawardi,2 the jurisdiction of the col-
lector of sadaqah taxes (wali al-sadaqa), although he ac-
cepts the zakat of " non-apparent " property when the prop-
erty owners pay it to him of their own accord, and assists
them in setting it apart, is limited to the zakat of apparent
property which the property owners are ordered to pay him.
There are two views concerning the meaning of this order,
if it is issued justly. One view is that the order constitutes
for the property owners a wajib obligation and that there-
fore they may not themselves pay the zakat directly to the

1 Mabsut, p. 199.

2 Mawardi, pp. 195, 196.

COLLECTION AND DISCHARGE OF THE ZAKAT 299

poor, and if they do so, their zakat obligation is not settled.
According to the author of the Mugni,1 the owner, when
ordered, should for the sake of loyalty pay the zakat of his
apparent property to the imam even if the latter should be
tyrannical, for the author adds that by being tyrannical the
imam does not forfeit his rule. The second view is that
the order constitutes only a mustahabb obligation an :
merely meant to exhort the owner to loyalty (ishara li
'l-td'ah). If, therefore, he himself pays the zakat directly
to the poor, his zakat obligation is discharged.

In short, according to the Hanifites, within the cities, the
zakat of non-apparent property is disbursed by the owner
himself directly to the beneficiaries of zakat, or, if he so
chooses, to the collector. If non-apparent propert\
taken outside of the city into the country, it becomes
apparent and, as in the case of other apparent prop-
erty, its zakat must then be paid to the public col-
lector and may not be disbursed by the owners directly
to the beneficiaries. Finally, the zakat of animals must
always be paid to the collector. Al-ShafVi, in his more
recent view,2 contends that the zakat of animals may
be paid by the owners directly to the beneficiaries, for
instance, to the poor, because the poor for whom the
zakat is paid have a right in property subject to zakat,
and when the zakat has been given directly to them this
right (haqq) will have reached its destination; under
these conditions the zakat debt must therefore be considered
settled exactly as the price of a thing bought would have
been settled if the buyer gave the price to the principal of
the agent rather than to the agent from whom he bought it.
Moreover, since the collector collects the zakat in order
later to disburse it to the poor, and the owner by himself
disbursing it to the poor has spared the collector that

1 P. 402. * Minhdj, p. 264.

300 MOHAMMEDAN THEORIES OF FINANCE

trouble, no action would lie against the owner on that
score.1 Moreover, according to al-Shafi'i, as quoted in the
Umm,2 the disbursement of zakat by the owner himself
is even to be recommended on the ground that the owner
in this way can better assure himself that his zakat obli-
gation is " discharged " as between him and God. How-
ever, according to the Mugni,3 it is preferable that the
owner pay his zakat to the imam if the latter is just, rather
than that he disburse it himself or through an agent, be-
cause by paying his zakat to a just imam he is positively
freed from his obligation, whereas by disbursing it himself
he incurs a risk, for should he disburse it to the wrong per-
son his zakat obligation would remain " undischarged ".
Then, too, by paying the zakat to the imam he makes it pos-
sible to distribute the zakat among a larger number of bene-
ficiaries. Some Shafiites hold that the zakat must be dis-
bursed to the imam in every case, even if the imam is tyran-
nical. Still others hold that it must in every case be dis-
bursed by the owner himself, not only because in this way
the owner may disburse his zakat to his kin and neighbors,
but also because he earns additional merit for disbursing it
himself. Al-Sarakhsi, in reply to al-Shafi'i, says that the
property owner has no more right to invalidate the right of
collection which belongs to the imam by the authority be-
stowed on him by the shan'ah, than has the person who is
subject to the poll-tax to settle it himself to the warriors
who are the beneficiaries of that tax. There are two grounds
for this. One ground is that the zakat is a divine right
(haqq allah) pure and simple, that its collection belongs
only to the person whom God appoints as His vicar for the

1 Mabsitt, p. 161-2.

2 P. 19.

3 P. 402.

COLLECTION AND DISCHARGE OF THE ZAKAT 301

collection of divine rights, namely, the im&m, and that
therefore the owner's debt is not canceled until he has paid
his zakat to the imam. Therefore, even if it should be
known that he settled his zakat debt once to the poor, he is
required to pay it again. Moreover, in this case the zakat
obligation is not settled even as between him and God, for
the imam has a voice in the disbursement of the zakat t>
its beneficiaries and the property owner, by himself paying
it to them, has rendered void the imam's right in this re-
spect. The other ground is that although the collector is an
agent of the poor and the latter have a right in the zakat
collected, yet with respect to the collection of zakat the col-
lector is so much their master (mawla), that the poor do
not have the right themselves to demand the payment of
zakat by the owners, and the owners are not obliged to settle
their zakat debts to them if they so demand. Should they
do so in fact, their position would be like that of a person
who paid his debt to a minor himself rather than to his
guardian. According to this second ground the owner's ob-
ligation of zakat is settled as between God and himself, if
he pays it to the poor. Therefore if it should be known that
he actually paid his zakat debt to the poor, he is not re-
quired to pay it again, unlike the person who paid his debt
to the minor himself, for the minor is not legally fit to re-
ceive payments while the poor are fit to receive the zakat
even though they may not demand its payment.1

The distinction in theory between apparent and non-
apparent property is recognized also by the Malikites. How-
ever, as regards collection, the Malikites virtually consider
all zakat property as apparent in contrast with the Shafiites
who almost go to the other extreme. Thus, unlike al-Shafi'i
who, as we saw, recommends the disbursement of zakat

lMabsut. p. 162.

302 MOHAMMEDAN THEORIES OF FINANCE

to its beneficiaries by the owners themselves, the Malikites,1
with a view to avoiding praise and insuring secrecy, recom-
mend the disbursement of zakat through an agent (naib),
that is, the state, especially if the zakat payer is ignorant
of the law or the imam is just. In fact the Malikites require
the owners to disburse to the imam when he is just even the
zakat of their non-apparent property.

The person who fails to pay his zakat (tarik al-zakat)
is not killed for it, but his zakat is collected from his prop-
erty by force. If, however, the collection of the zakat by
force is not possible, then he may be proceeded against by
military force until the zakat is collected, even if that should
eventually lead to his being killed.2 This was done by the
calif Abu Bakr with the tribes which had refused to pay
the zakat after the Prophet's death. The fighting of the
" refusers " (mani() of zakat is lawful according to either
of the two constructions put on the " order " to pay the
zakat above mentioned, because by refusing to submit to the
just orders of the authorities they have committed treason.
Abu Hanifah disapproves of fighting in case the property
owners undertake themselves to settle the zakat to the poor
directly.

The above applies as regards the zakat of apparent prop-
erty only,3 for in the case of non-apparent property, the
owners may themselves settle their zakat dues. They are
nevertheless rebuked (ankara falayhi) if they fail to do
this, the right of censure in this case belonging to the public
inspector (muhtasib), since the collector has no jurisdiction
over non-apparent property. It might, however, be argued
that this right belongs to the collector because, although he

1 Kharashi, pp. 124, 130.

2 Mawardi, p. 380.

3 Mawardi, pp. 415-6.

COLLECTION AND DISCHARGE OF THE ZAKAT 303

has no jurisdiction in this case, the obligation of the prop-
erty owners is discharged should they pay the zakat to him.
The punishment (tadlb) of the property owner depends
upon the peculiar circumstances of the case, for if he claims
that he settles his zakat in secret he is believed.

According to the Hanifites,1 the state may resort even to
war in order to collect the zakat of apparent property.
Moreover, according to a quotation from the Tafariq in the
Kifdyah,2 if it is understood that the people of a city do not
pay the zakat of their non-apparent property, they are
ordered to do so, and those among them who are known to
fail in settling their dues are beaten and, according to the
Ishdrat, put in prison until they pay them. Finally, ac-
cording to Malik, the owners should make no distinction
between the zakat of their gold and silver (nadd) for which
the imam does not send and the zakat of their cattle and
crops and fruits for which the imam does send ; but should
settle both when the imam is just. Consequently if the
imam knows positively that they are not paying the zakat
of gold and silver, he may take it from them.8 According
to later Malikites,4 the zakat of both apparent and non-
apparent property is paid (dufi'at) to the imam, who collects
it by force and even by war. If no property of the person
who refuses to pay his zakat can be found, the imam may
put him in prison if he is known to possess wealth.

5 If the collector is unjust and tyrannical in the collec-
tion of zakat but just in its distribution among its bene-
ficiaries, the concealment of property from him is allowed.
If, on the other hand, the collector is just in the collection

'Yusuf, p. 45- 'R l'2-

1 Mudaivwanoh, pp. 44-5.
4 Kharashi, p. 130.
8 Mawardi, p. 209.

304

MOHAMMEDAN THEORIES OF FINANCE

of zakat but unjust in its distribution, the concealment of
property from him is then a wajib obligation, and the pay-
ment of zakat to him is not allowed.

If a person conceals 1 the zakat of his property from a
just collector, he collects it later when he discovers it, and
he then inquires into the cause of concealment. If the
zakat was concealed because the property owner wanted
himself to pay his zakat to the poor, the collector does
not punish (ta'zlr) him. If, on the contrary, he hid it in
order to defraud God, the collector punishes him, but he
does not fine him by charging him a higher rate of zakat.
Malik says that the collector in such case receives half of
the property as fine because of the hadith : "If a person
fraudulently withholds his zakat, I will receive the zakat
and half of his property as a fine of God." However, the
hadith: " There is no other right against the property (of
the Moslem) except zakat " indicates that the other hadith
is not to be taken literally and that it is merely meant to
warn against defrauding.

In the appointment of a collector there are three pos-
sible cases: (i) The collector may be empowered both to
collect and to disburse; (2) He may be empowered to col-
lect the zakat but forbidden to distribute it among its bene-
ficiaries. The person, however, who appointed the col-
lector becomes a sinner by causing a delay in the distribu-
tion of the zakat, unless he appoints another person for dis-
tributing the same. (3) His power may be indefinite, that
is, he may be neither specifically empowered to distribute
the zakat nor forbidden to do so. He is then entitled both
to collect and to distribute the zakat.

2 The collector, to be a full-powered collector ('amil al-

1 Mawardi, pp. 208, 380.
8 Mawardi, p. 196.

COLLECTION AND DISCHARGE OF THE ZAKAT 305

tafwid), must be a free man, a Moslem, just, and conver-
sant with the law on the zakat , but, if he is to be only an
" executive " (munaffidh) collector who is directed by the
imam how much he is to collect, he need not be conversant
with the law concerning the zakat. It is permissible to
appoint as collector a person who may not lawfully receive
a share from the proceeds of zakat, namely, a person from
the Prophet's relations, but such persons receive their pay
from the share of masalih.

1 The full-powered collector in collecting the zakat follows
his own judgment (ijtihad) on disputed points of law. He
does not follow the judgment of the imam or of the prop-
erty owner. Neither is the imam allowed to prescribe
the amount he is to collect. If, however, he is an executive
collector, he follows on disputed points the judgment of
the imam, but not of the owners, and it is the duty of
the imam to tell him what he is to collect. Such a collector
is in reality a messenger (rasul) of the imam for carrying
out his judgments. Therefore he may be a slave or a
dhimmi, subject however to these conditions: He may
not be appointed for the collection of zakat in general, be-
cause slavery and unbelief are incompatible with the ex-
ercise of authority, but he may be appointed for the collec-
tion of zakat as regards a particular piece of property whose
amount and zakat liability are known. If, however, the
amount of the property whose zakat is to be collected or
the amount of the zakat due on it is not known, then it is
not permissible to appoint as collector a dhimmi, because
he would have been entrusted with a property concerning
which his report (khabar) is not valid. However, in this
case it is permissible to appoint a slave as a collector be-
cause the report of a slave is valid.

1 Mawardi, pp. 200-2.

306 MOHAMMEDAN THEORIES OF FINANCE

If the collector is late in presenting himself for the col-
lection of zakat which has already fallen due, the property
owners wait for him in case they have heard that he is com-
ing and that he is occupied for the moment with others,
because the collector cannot possibly attend to every one at
the same time. However, the property owners themselves
settle their zakat if the collector is late with respect to all
of them and exceeds the usual delay limit, because the obli-
gation of the owners to pay the zakat to the collector is
conditioned upon the possibility of so doing and lapses when
this is impossible. In this last case, namely, when the owner
himself pays his sakat to the poor, he acts according to his
own judgment if he is a mujtahid-, but if he is not one, he
asks for the opinion of the faqih, in whom he trusts, for
he is not obliged to ask for the opinion of a faqih whom he
does not trust. If he asks two faqihs for their opinions
and one of them expresses the opinion that he must pay the
zakat, and the other, that he is not under obligation to pay
it, or one holds the view that he must pay more than the
other advises him, the Shafiite doctors have disagreed as
to which of the two opinions should be followed, some
holding that the more unfavorable of the two must be ap-
plied, others contending that the person who asks for the
advice may follow whichever opinion he chooses.

When the collector presents himself after the property
owner has acted upon his own judgment or upon another's
view, and the collector's opinion happens to be different in
that it requires the payment of zakat or of more of it, the
opinion of the colector is followed if it is still possible to
do so, otherwise the view of the property owner is accepted.
If, on the contrary, the property owner's judgment requires
more than that of the collector, the owner as between him
and God is obliged to pay the zakat according to his own
judgment, since by his judgment he has confessed the right
of the poor in his property.

COLLECTION AND DISCHARGE OF THE ZAKAT 307

If the property owner contends that the property was
destroyed before he had become responsible for its zak&t^
he is believed, but the collector may, if doubting his honesty,
put him on oath.

With respect to grapes or dates which were appraised,'
if the owner contends that they were destroyed, he is be-
lieved upon oath if the cause of destruction he invokes
is concealed (khafi), as theft, or open (zOhir) and well-
known; but, according to the more prevalent view, he is
required to produce evidence if it is not well-known. If,
on the other hand, he claims that the appraiser was unjust
or that he made a mistake, his plea is rejected if the in-
justice or mistake claimed is too great to be true, such as
one- fourth of the entire amount; otherwise, according to
the more general view, he is believed.

H the property owner admits to the collector the amount
of his zakat dues but does not tell him about the amount of
his entire property, the collector may take the owner's word
and collect accordingly without requiring him to exhibit his
property.

If * the owner of cattle fixes their number at a figure, he
is believed, if trustworthy; otherwise the animals are
counted by being made to pass through a narrow passage.
The owner is likewise believed if he contends that the
young were born after the year and should not pay zakQt.
In such cases he may also be sworn by way of precaution
though not as a matter of law (istihbaba) . In other words,
should he refuse to swear he is nevertheless excused.

According to al-Haytami,4 the word of the property

1 According to the Shafiites, as we already saw (Minhdj, p. 268), the
owner becomes responsible for the sakdt by not disbursing it as soon
as it became possible ( tamakkun} to do so.

1 Minhdj, p. 242 ; Mugni, p. 378.

» Minhdj, pp. 236, 237; Mugni, pp. 370, 371.

*Al-Fatdwa al-Kubra, vol. ii, p. 34.

3o8 MOHAMMEDAN THEORIES OF FINANCE

owner as to the amount of his zakat is taken only in case
he is himself positive about it, and in such case it is well to
put him on oath if there is ground for suspicion. If, how-
ever, the property owner is only guessing, his conjecture is
not taken into account, the amount being determined other-
wise.

1 If the property owner contends that he paid (ikhrdjaha)
his zakat directly to the poor, his word is accepted, if the
collector had not arrived on time when the zakat 's payment
became possible; but the collector, if he has suspicions, may
require him to take oath. According to one view, the zakat
is collected from the owner if he refuses to take the oath,
but according to another view, it is not. If, however, the
owner contends having himself disbursed his zakat notwith-
standing the arrival of the collector on time, his word is not
accepted if it is said that the owner is obliged to pay his
zakat to the collector, but his word is accepted if it is said
that the payment of zakat to the collector is only a musta-
habb.

If the property owners claim to have paid the collector
their zakat , and the collector denies it, the disbursed owners
are sworn to the truth of their claim and released from their
dues.

2 If the collector, whether of the full-powered or the ex-
ecutive type, confesses having received the zakat from the
owners, his word is accepted during his tenure of office,
but there are two views concerning the acceptance of his
word after his dismissal from office. Those who hold that
the payment of zakat to the collector is a mustahabb say
that his word is still accepted, but those who hold that the
payment of zakat to the collector is a wajib obligation say
that his word after dismissal from office is not accepted,
and that independent evidence must be presented to prove

1 Mawardi, p. 209. * Mawardi, p. 209.

COLLECTION AND DISCHARGE OF THE ZAKAT 309

the point; that furthermore, even though he be just, he is
not also allowed to bear witness to the payment of the zakat.

1 If the property owner has suspicion about the proper
disbursement of his zakat and asks to watch the collector
disburse it, the collector is not obliged to grant his request,
because by paying it to the collector the property owner be-
comes free from his sakat obligation, and therefore should
the collector ask him to be present at the disbursement of
the zakat he is not obliged to do so.

The collector is not allowed to receive bribes or gifts
from the property owners, for the Prophet said : "The gifts
of the collectors are a case of fraud ".

If the collector appears to have been unfaithful (khv-
ydnah) the right to remedy the evil belongs to the imam
and not to the property owners. In this case the bene-
ficiaries do not have a right of action, but as " persons in
need " (tasallum dhawu al-hajat) they may lodge a com-
plaint with the proper authorities. They are, however,
barred from testifying against the collector because of the
suspicion attaching to them. As regards the testimony of
the property owners against the collector, if it relates to the
collection of sakat from them it is not admissible, but if it
relates to the disbursement of zakat to others than its bene-
ficiaries it is admitted.

According to the Hanifites, if the Moslem or dhimmi*
traders who pass the 'ashirs claim that they do not owe
zakat or toll on their goods, either because the year has not
elapsed or the goods are not articles of trade, or because

1 Mawardi, pp. 214-7.

2 The dhimmi traders are treated by the 'dshirs exactly like the Mos-
lem traders, excepting the case where the dhimmis claim themselves
to have disbursed the tax to its beneficiaries. This is because the toll
levied on the dhimmis is not sakdt but a regular tax disbursed by the
state itself. The harbi traders are treated in a different way, as will be
explained in the next section on the 'Ashirs.

3io MOHAMMEDAN THEORIES OF FINANCE

they are in debt or have already settled their dues to another
'ashir, — provided however there was another 'ashir during
the year, — or if the Moslem traders claim that they settled
in the city directly to the poor the zakat of their non-appar-
ent property, they are believed if they support these state-
ments by taking oath and they consequently do not pay
zakat. For they are trustees in regard to their zakat debt
and, as such, their word is taken if supported by an oath.
Abu Yusuf claims that, as in the case of other acts of wor-
ship, their statements are taken to be true and they need
not be sworn to. Some say that a claim of indebtedness
is not accepted unless the debt covers the entire property,
but the author of the Majma' observes that it is immaterial
whether the debt covers the entire property or a part of it
provided only it affects the nisab.1

Likewise, if the trader claims that his goods are from
Marw (marwi) or from Harat (harawi), the 'ashir may
not open the goods in order to inspect them, if by so doing
he is likely to injure them. In such case he collects the tax
in accordance with the sworn statement of the trader. This
is based on a hadlth of the calif Omar to that effect.2

The Moslem trader has to pay the zakat again if he
claims that he settled the zakat of his trade goods to the
poor outside of the cities, because he is entitled to do this
only within the cities, not in the country, since there the
property needs the protection of the state and the right
of collection therefore belongs to the state. For the
same reason, the zakat has to be paid over again if the
Moslem trader claims that he settled the zakat of his
sawtfim animals to the poor, no matter where, because the
collection of the zakat of sawa'im animals both in the cities
and in the country belongs to the state.

1 Majma', p. 172. *Mabsitt, p. 200.

COLLECTION AND DISCHARGE OF THE ZAKAT

All the above applies also as between the owner of
sawa'im animals and the collector (sa'i) who calls at his
residence for their zakat', namely, the owner is believed
upon oath if he says that the year has not elapsed or that
the animals are covered by debt, or if he says that the
animals are not his or that he settled the zakat to an-
other collector; but his claim is rejected if it is to the effect
that he gave his zakat to the poor directly. Al-Shafi'i dif-
fers on the last point.1

According to the Zahir-al-riwayah view, when the owner
claims to have settled his zakat dues to another collector,
it is not necessary for him to present a written receipt
from the other collector, but his sworn statement is con-
sidered sufficient; provided that there was in fact another
collector during that year. However, according to a report
from Abu Hani f ah through Hasan Ibn Ziyad, the tax
payer must prove his statement by presenting the respec-
tive receipt (baraah). The ground for this second view
is that the custom of collectors is to give a receipt when
they collect the zakat and therefore unless the owner pre-
sents this receipt the presumption is against him and his
word is not accepted; just as the claim of the mother to
have borne a child is not accepted even if sworn to by her,
unless testified to by the midwife. The ground for the
other view, which is the one generally accepted by the doc-
tors, is that although the receipt is a written instrument,
people's writings look similar, and sometimes it happens
that the tax payer forgets to take the receipt along, or loses
it, and that therefore the decision may not be made to de-
pend on the receipt.

When the tax payer is obliged to pay the tax over again
for one reason or another, it is the second payment that
constitutes a payment of the zakat, the first payment being

lMabsul p. 161.

312 MOHAMMEDAN THEORIES OF FINANCE

a nail. Some say that the zakat is the first sum paid, and
that the second is a fine.1

Finally, according to Malik,2 both the practice and the
opinion of the doctors of his time is to the effect that people
should not be oppressed in the matter of sadaqah but that
whatever they give should be accepted. According to later
Malikites, when the owner claims to have disbursed his
zakat directly to the poor, or contends that he is exempt
from it by reason of indebtedness, he is believed only as
regards the zakat of non-apparent property, the settlement
of which is entrusted to his loyalty, but his plea is rejected
as regards the zakat of apparent property. However, fol-
lowing a statement of Malik, the owners are believed in
their statements to the effect that they do not have other
property and are not put on oath, even as regards apparent
property.

According to Khalil,3 if the number of one's cattle, when
they are actually counted, turns out to be different from
the number previously reported to the collector (safi), the
latter collects the zakat on the basis of the actual number
if he had not previously believed (saddaqa) the cattle
owner's report. If, however, he had believed his report,
he still collects on the basis of the actual number if that
number is lower than the one reported. If, on the con-
trary, it is higher, according to one view of the matter
the actual number, but according to another view, the
number reported is taken as basis. This difference of
view is a consequence of the difference of view on the
question whether or not the fact of the collector's believ-
ing the cattle owner's report has the legal force of judg-
ment by a judge and may therefore replace the facts

1 Jdmi', p. 319.

2Kharashi, p. 130, also pp. 80, 106; Muwattd', p. 115; Zarqani, vol. ii,
p< 62. *Kharashi, p. 70.

COLLECTION AND DISCHARGE OF THE ZAKAT

themselves. Al-Kharashi thinks that the tax should still
be collected on the basis of the actual number. If the grapes
or dates which were appraised are later destroyed by acci-
dent (jaihah) this fact is taken into consideration. If the
appraisal turns out to be too high, no reduction is made
unless this is proved by the owner. If, on the contrary, it
turns out to be too low, the owner is advised to pay tithe
on the basis of the actual produce, but he may not be forced
to do so.1

" If the collector admits having received the zakat but
claims to have disbursed it to the beneficiaries, while the
latter deny it, the collector's word is accepted because he is
a trustee with regard to zakat ; but the denial of the bene-
ficiaries is likewise accepted to the extent that they are con-
sidered still to be " poor " and entitled to sak&t as bene-
ficiaries.

If the collector denies that he has received the zakat
he is released upon making oath. If in such case some of
the property owners testify in favor of those claiming the
payment of their zakat dues to the collector, their testimony
is not admitted if it is after the collector's denial, and the
institution of legal proceedings between them ; but if it hap-
pens before, their testimony is heard and the collector is
sentenced to make restitution of the amount claimed to
have been paid to him. If in such case the collector after
the testimony claims to have disbursed the zakat to its bene-
ficiaries he is not listened to, because he has belied his claim
by his previous denial ; and, on the other hand, if the bene-
ficiaries testify in his favor, saying that they received it
from him, they are likewise disregarded.

If the zakat is destroyed in the hands of the collector
before its disbursement to its beneficiaries, the collector is
not liable to damages unless it is due to his neglect or fault.

iRharashi, p. 80. 2 Mawardi, pp. 215-7.

314 MOHAMMEDAN THEORIES OF FINANCE

If the collector by mistake disburses the zakat to other
than its beneficiaries he is not liable for damages if he dis-
burses it to persons whose status is concealed, such as well-
to-do persons ; but if he disburses it to persons whose status
he might have known, such as slaves and the Relations,
opinion varies. If it is the property owner who makes this
mistake, opinion varies as regards disbursement to those
whose status is not apparent, but as regards persons whose
status is apparent, he is universally held to be liable for
damages. The collector is treated with greater leniency
because he is occupied with so many more people.1

SECTION II

The 'Ashirs or Collectors on the Public Road
The 'ashirs are the collectors stationed by the imam on
the public road in order to collect the zakat of Moslem
traders, as well as the tolls imposed on the dhimmi and
harbi traders who pass him. The institution of 'ashirs and
the rules pertaining to their authority are based on the pre-
cedent established by the calif Omar, who appointed ( ashirs
and instructed them to collect from Moslem traders two
and one-half per cent and from dhimmi traders five per
cent, and who when asked " How much shall we collect
from the harbis? ", said: " How much do the harbis collect
from us ? " When he was told that they collected ten per
cent, he said : " Collect from them ten per cent." Accord-
ing to another report, he said : " Collect from them the rate
that they collect from us " ; and when further asked, " If
it is not known what rate they collect?", he answered:
" Collect from them ten per cent." a

1 Concerning the proper authorities invested with the right of ap-
pointing the collectors and other officials, the persons who may be so
appointed, the duration of their tenure of office, the determination of
their salaries, the manner in which they are appointed, and their right
to appoint substitutes, see Mawardi, pp. 360-6. For the audit of their
accounts, see infra, pp. 49&-Q.

s Mabstit, p. 199 ; Yusuf , p. 76.

COLLECTION AND DISCHARGE OF THE ZAKAT

The Shafiites l condemn the institution of 4a shirs, as ap-
plied to traffic within the Moslem world, as unjust and un-
lawful. They consequently do not allow the levy of tolls
('ushr, plural, 'ushur) from dhimmi traders who travel
within a Moslem country from one city to another, unless it
is so stipulated. Likewise it is not allowed to levy tolls
on the harbi traders unless it is so stipulated. The rate
of the toll is fixed by the imam who may, and should, en-
tirely remit it if that would induce the importation of com-
modities which are greatly needed by the Moslems. How-
ever, both the dhimmi and the harbi traders may not be al-
lowed to enter the Hijaz territory for trade purposes unless
their trade is needed or a toll is stipulated. If the toll is
based on the price, it is not collected until after the sale.
When it is collected, a receipt is given, and it is not collected
again during that year. Non-traders do not pay a toll, even
when they enter the Hijaz.

According to the Malikites,3 the levy of tolls from infidel
traders is justified by the practice of Omar. Thus Malik
says that if a dhimmi of Egypt goes to Syria for trade, or
if a Syrian goes to 'Iraq, or a trader of 'Iraq to Medina or
Yaman, he is subject to a toll when he sells or buys wares;
but that when once he has paid a toll he is not taxed further
should he buy or sell again, until he has left the city and
returned once more.

The Malikite doctrine as summarized by al-Dardlr is as
follows : The dhimmi traders pay a toll of ten per cent on
the wares they sell or purchase in other than their own dis-
tricts (iqllm, ufq), even if they should return (ikhtalafil)
to a district several times in a single year, for the toll is
levied in consideration of the benefit derived from the trade

1 Mawardi, p. 359; Angari, vol. iv, p. 218; Wajis, vol. ii, p. aoi;
Minhdj, vol. iii, p. 278; Mugni, vol. iv, p. 288; cf. Umm, vol. iv, p. 193.

2 Dardlr, pp. 205-6; cf. Mudowwonah, p. 40; Zarqani, vol. ii, pp. 51, 75.

MOHAMMEDAN THEORIES OF FINANCE

and the benefit recurs every time the dhimmi returns for
trade. At each time, however, the toll is collected only
once, even if he should buy and sell during that time re-
peatedly. In case of purchase, the toll is collected in kind,
but in case of sale it is collected in specie from the price,
and consequently no toll is collected if the goods are not
sold. In order to induce the importation of foodstuffs to
Mecca and Medina and the adjoining country, the rate of
the toll in those cities was only five per cent of the price.
If the dhimmi traders buy goods in one city and sell them
in another city, both cities being within the same district,
for instance, in Syria or Egypt or the Byzantine country
(rum) or the Magrib, they are subject to no toll whatever.
Unless otherwise stipulated, the harbi traders pay as toll
ten per cent of their wares, whether or not they sell them.
This toll is not repeated if they travel from one district to
another within the Moslem world, for with respect to the
harbis all Moslem districts are like one single district. The
toll, however, is repeated if they had meanwhile returned
to their country and are coming back from it; for upon
their return to their country the effect of the aman which
was given to them before ceases.

The 'ashirs must be distinguished from the sa'is who are
the collectors of the zakat of sawaim animals and go about
in the country calling on the owners of sawa'im animals for
their zakat dues ; as the word sai, literally runner, indicates.
As opposed to these special terms, musaddiq means any col-
lector of zakat, within or without the cities; so does lamil,
literally, agent. On the other hand, the expression wall al-
sadaqat denotes the authorities entrusted with the collection
and disbursement of the zakat taxes.1

The Hanifite views concerning the powers and duties of

1 Cf. Angari, p. 395 ; Mugni, vol. iii, p. 102.

COLLECTION AND DISCHARGE OF THE ZAKAT 317

the * Oshir are as follows: The 'ashirs are entitled to collect
the zakat of both apparent and non-apparent property
which conies under their jurisdiction, although they are
primarily appointed to collect the zakat of non-apparent
property and the tolls imposed on the non-Moslem traders.
The jurisdiction of the 'ashirs as regards the zakat of
non-apparent property (which is normally outside of gov-
ernmental jurisdiction), is based on the fiction, already re-
ferred to, that non-apparent property becomes apparent
property when it is taken outside of the cities into the
country where it is exposed to the danger of robbers and
hence needs the protection of the state; which in consid-
eration for the protection it affords acquires the right itself
to collect the sakat. Al-Sarakhsi x observes that this (fic-
tion) holds even more truly as regards the non-Moslems
because they are more exposed to the danger of robbers.

The 'ashirs, therefore, in reckoning up the nisab, have no
right to count non-apparent property that the traders may
happen to possess elsewhere, but may count the property in
question only when the owners have it with them. They
may, however, count apparent property found elsewhere,
because apparent property remains such, no matter where
situated.2

In accordance with the hadlth of the calif Omar already
referred to, the rates are two and one-half per cent for the
Moslems, but five per cent for the dhimmis, owing to the
fact that they need protection from robbers more than the
Moslems. Unlike the Moslems, who must pay the zakat of
their trade articles whether or not they pass an 'ashir, the
dhimmis are subject to this toll of five per cent only in so
far as they come under the jurisdiction of an 'ashir by

1 Mabstt, p. 199.

*Mabstt, ibid.; fdmi', p. 318; 'Alomkiriyyah, p. 257.

MOHAMMEDAN THEORIES OF FINANCE

traveling for trade.1 This difference is due to the fact that
while the tax collected by the 'ashirs from Moslems consists
in their zakat dues, the one collected from the dhimmi is in
reality only an octroi duty. Except for these two differ-
ences the dhimmis are treated like the Moslems in every re-
spect. According to the doctors, the dhimmis by paying a
double tax have earned a right to this equality of treatment.
As regards the harbi traders, the f ashir collects from the
property they have with them at the rate of ten per cent, pro-
vided their property amounts to a nisab and the 'ashir does
not know the rate collected from the Moslems by the harbis
in their country but only knows the fact of collection.
If, however, the 'ashir knows the rate paid by Moslems in
the land of harbis, he then collects from the harbis the same
rate, whether it be little or much, in order to get even with
them. According to the Path,2 it is only with respect to the
rate of the tax that the principle of reprisal (mujasat)
holds true, since the right of collecting a tax at all (asl al-
akhdh) is based on the fact that the harbis during their
sojourn in Moslem territory enjoy the protection of the
Moslem state and so come under its taxing power. If the
harbis are collecting as a tax from Moslem traders the
whole of their property, the 'ashir does not collect the whole
of the harbis' property but leaves with them enough to
enable them to return home. Some say that in such case the
whole should be taken in order to dissuade the harbis from
doing the same thing to the Moslems, but the Path replies
that this would be unjust after the harbis have been given a
pledge (amdn) of safety when they entered the Moslem
territory, and that therefore the Moslems should not do it
simply because the harbis do, for leaving a person without

1 Yusuf, p. 76.
'P. 175.

COLLECTION AND DISCHARGE OF THE ZAKAT

319

any means for returning home, after having given him
a pledge of safety, would practically amount to murdering
him. The Hidayah applies the principle of reprisal also as
regards the requirement of nisab, for according to it, if the
harbis tax any quantity, the Moslems also do the same. In
another view of the matter, however, the harbis are never
taxed when their property is little, because they will need it
for food and for satisfying other wants, and because the
property, being little, does not need protection from robbers.

If, finally, the harbis collect no tax from Moslem traders,
then likewise the 'ashir does not collect a tax from the
harbis, " for the fact that they have given up their oppres-
sion (i. e., collecting taxes from Moslems) while they have
the power, is on their part an exercise of favor toward us,
but we (i. e., Moslems) are more fit to be possessed with
virtues than the harbis" x

The children and women of the harbis are exempt from
tax on condition that similar treatment is accorded to Mos-
lems by the harbis.

If the harbi traders claim that they have debts or that the
year is not complete, their statements are not accepted and
they must pay the tax even if those assertions would be
proved.2 Some say that this applies only in case the prac-
tice of the harbis is not known or, if it is known that they
do not accept similar statements made by Moslem traders
in their country. If therefore it is known that they accept
such statements, their statements then are accepted by the
' ashir s and they are exempted from the tax.8 If, however,
the harbi claims that a certain person is his child or umm
walad (mother of a child, i. e., a slave whose child was

1 Fatb, P. 175.

'Path, p. 174.

, pp. 319-30.

320

MOHAMMEDAN THEORIES OF FINANCE

acknowledged by her master as his own), his words are be-
lieved and he does not pay tax on them, because the fact that
he is a harbi does not preclude his having children or his
acknowledging as his own the children of his slaves.

If the harbi passes the 'ashir for a second time before the
lapse of a year from the first time, he is taxed again if he
had returned to his country in the meantime, and this would
be true if he passed the 'ashir ten or more times during a
single day, provided that each time in the meanwhile he had
returned to his own country, because the tax is collected
from him in consideration of the aman (pledge of protec-
tion) given him when he entered the Moslem territory, and
the effect of the aman ceases as soon as he returns to the
country of the harbis. The aman in fact has to be renewed
every time he enters the Moslem territory.

Consequently, if the harbi has not returned to his country
during the year he is not taxed again during that year.
According to the Jami'? what is said concerning the last
case applies if the harbis act the same way in regard to the
Moslems or if it is not known how they act, for if it is
known that they act differently they receive a similar treat-
ment at the hands of the Moslems.

If the dhimmi passes the 'ashir with wine he is taxed for
its value if he intended to trade in it. If however he passes
the 'ashir with pigs he is not taxed. According to
al-Shafi'i, wine and pigs are not taxed, because they
do not possess a value, but Zufar holds that they do
possess a value for the dhimmis and must therefore pay a
tax. Finally, Abu Yusuf says that they pay a tax if they
are found together, — in such case the pigs being consid-
ered as an appendage (tabaf) to wine; but if they come
under the ' ashir' s jurisdiction separately, only the wine

' P. 320.

COLLECTION AND DISCHARGE OF THE ZAKAT 321

is taxed. The Moslem is never taxed for his wine.
The skins of dead animals are treated like wine, because
both may be converted into wealth (mat), — the former
by being turned into vinegar and the latter by being tanned
for use as leather. Pigs, however, do not constitute wealth
in any case. Moreover, wine and skins being fungible goods,
the collection of a part of their value as a tax is not collec-
tion of the thing itself, but, pigs being non-fungible (qlnti)
goods, the collection as a tax of part of their value is col-
lection of a part of the pigs themselves (fayn), which are
forbidden to Moslems. The value of the skins and the wine
is ascertained from a dhimmi and according to another view
from two dhimmis who became Moslems or from two Mos-
lems who, having for a time practised impiety (fisq), have
later repented. However the Majma' remarks that the
value of goods changes with time and place and that there
is difficulty in finding two persons of these types at the time
of need.

According to Abu Hanlfah, if a person should pass the
* ashir with perishable goods, like fruits, fresh dates, vege-
tables, milk, etc., the 'ashir does not collect their tax but
orders the owners themselves to pay it to the poor. Ac-
cording to Abu Yusuf and Muhammad Ibn al-Hasan, the
f ashir collects the zakat on them, since they are like other
goods as regards need for protection from robbers. Abu
Hanifah's argument is that the 'ashir collects as zakat a part
of the nisab in order to disburse it to the poor, but that in
this case there are no poor to whom he may disburse imme-
diately, and that he cannot do so later because by that time
the goods will have perished. Therefore, the best thing to
do under the circumstances is to order the owners them-
selves to pay their zakat dues directly to the poor.1 The
above applies also to the case of dhimmis and harbis.
1 Mabsuf, p. 204; 'Atomkiriyyah, p. 259.

322 MOHAMMEDAN THEORIES OF FINANCE

The 'ashir does not collect zakat from the mukatab or
the minor who passes him, since his property is not sub-
ject to zakat. Likewise, he does not collect zakat from
slaves for goods (bida'ah) of their masters which they
happen to possess for trade unless their masters are with
them. If, however, the goods do not belong to the master,
but are the slave's own stock earned by him by trading
with the permission of his master (ma'dhun), the slave
does not pay zakat on them if he owes money to the entire
value of his goods. If he does not owe any debts, the
'tishir collects zakat if his master is along with him. If,
however, the master is not present, then according to Abu
Hanifah, as quoted in the al-Jami' al-Sagir, the 'ashir still
collects the zakat } but in the opinion of Abu Yusuf and
Muhammad Ibn al-Hasan, he does not.1

According to Abu Hanifah's first view, if the mudarib
passes the 'ashir with trade stock (mal mudarabah), the
'ashir collects zakat from it ; but according to his later view,
the 'ashir does not collect zakat. The later view is also
shared by his disciples. Al-Sarakhsi observes that although
he does not know whether Abu Hanifah changed his view
concerning the case of the slave who was allowed by his
master to trade, the analogy of the mudarib would lead one
to expect that Abu Hanifah would exempt the slave also.
The ground for the first view, according to which the mu-
darib is subject to zakat , is that he has rights in the trade
stock like those of a proprietor, since he has a share in the
profit. The ground for the other view is that he is a trustee
concerning the trade stock which belongs to the principal
(rabb al-mal) and that although he has the right to trade
in it he does not have authority to settle its zakat , especially
as the settlement of zakat to be valid must be accompanied

1 Mabstt, p. 201 ; cf. Al-Jami' al-Sagir, p. 21.

COLLECTION AND DISCHARGE OF THE ZAKAT 323

by intention. The slave, however, trades in the stock for
his own proper benefit and differs from the mudarib by
virtually owning his profits.

In regard to 'ashirs, the members of the Taglib tribe are
like the dhimmis.

SECTION III

The Discharge of the Zakat Obligation (General) l
The condition determining the validity (sihhah) of the
payment of zakat is that the payment be coupled with the
intention that it is to discharge the sakat rather than
some other obligation. For zakat is an act of worship and
as such is not valid unless so intended. The intention may

1 The distinction between zakdt as a predominantly religious obliga-
tion and zakdt as a predominantly political obligation must always be
borne in mind. The Mohammedan doctors, when they want to refer
to the settlement of the zakdt as an obligation to God as distinct from
that to the state, use the word ajzd', which means " to satisfy," " to
serve instead of." This word has been rendered by the English "dis-
charge." It is only when settlement of zakdt as an obligation to the
state is accompanied by its discharge as an obligation to God that the
zakdt payer earns religious merit (thawdb). While the payment of
sdkat to the state collector carries with it normally also its discharge
as a religious obligation, this by no means always follows. Thus, al-
though the payment of zakdt to tyrannical governments frees the zakdt
payer from the political obligation, in the opinion of some doctors it
does not carry with it the "discharge" of the zakdt, which should
therefore be paid over again by the owners directly to the proper
beneficiaries secretly if they are to be freed from the religious obli-
gation also. The doctors indicate when the two obligations do not go
together, and when they fail to do so it may be presumed that they
coincide. The question of the discharge of the zakdt obligation acquires
special significance when the zakdt may be and is disbursed to its
beneficiaries directly by the owners, since in such cases the political
obligation is not present and the "discharge" of the zakdt obligation
is the only point at issue. The first two sections of this chapter re-
late chiefly to the settlement of the political obligation, while the last
three, particularly the last two, sections concern chiefly the "discharge"
of the religious obligation.

324 MOHAMMEDAN THEORIES OF FINANCE

accompany the act of payment, whether it be made to the
zakat payer's agent (in order to be paid by him to the
poor) or directly to the poor themselves. The intention
may also follow the act of payment, provided it be made
while yet the property remains intact in the hands of the
poor. If, however, the property had been destroyed in the
hands of the poor before the zakat payer intended it for
the settlement of his zakat debt, his zakat debt is not dis-
charged and the amount has to be paid over again. Finally,
the intention may accompany, instead of the actul payment
of zakat j its setting apart from the nisab by the property
owner for its future payment. Thus if one sets apart from
his nisab on which a year's zakat falls due, an amount equal
to the zakat intending it for such, and later pays it to a poor
person without intending it again at the time, the zakat debt
is discharged.

The generally accepted view is that it is not necessary
for the discharge of the zakat debt, that a poor person
should know that what was given him was intended for
zakat. If therefore one should give a poor person money
as a present or a loan, but intend it for zakat, the zakat debt
is duly discharged. According to the Fatawa 'Ali Efendi,1
in giving the zakat it is preferable to do it in public (izhftr) ,
unlike alms (tatawwuc), which should preferably be given
in secret.

If one should give the poor as alms (sadaqah) the whole
of the nisab without intending it for the discharge of his
zakat, the zakat is nevertheless discharged. Although it is
necessary that the intention of zakat should be present, and
although analogy requires that the part of the nisab in-
tended for the zakat debt should be specified, the act is
valid, judging by istihsan. In fact, intention is essential

1 P. 14.

COLLECTION AND DISCHARGE OF THE ZAKAT 325

in order to distinguish an act of piety from an habitual
act, and in the giving of alms there is already an intention
of obtaining the divine good will. The requirement that
the property given in settlement of zakat must be definitely
known is, on the other hand, met, in that the portion in-
tended for zakat is defined through the fact that the entire
nisab (which includes the zakat) has been defined. Zufar,
following analogy, held the contrary view; for he argued
that inasmuch as the fard and the natt are both sharfah ob-
ligations, it is necessary to specify whether it is the fard
(i. e., the zakat) or the nod (i. e., the alms) whose discharge
is intended.1

However, according to Abu Yusuf, if one should give
as alms a part of the nisab, that part's share of the zakat is
not discharged, because there is no sign that the part given
is intended to include its share of the zakat, in view of the
fact that the entire zakat may be settled from the remain-
ing part and that it cannot therefore be known how much
of the debt was intended to be settled in the part given.
According to Muhammad Ibn al-Hasan the zakat of the
part given as alms is included in it and discharged; this is
because he considers that the obligation of zakat is propor-
tionately distributed throughout the entire nisab, and that
when part of it is given as alms its share of zakat is in-
cluded and discharged.

If, however, one gives the nisSb or part of it, intending it
for the settlement of some other wajib than the zakat, then
only that wajib is discharged, and the zakat debt has to be
settled separately.

The Shafiites and Malikites * alike require the presence
of intention at the time of setting apart ('azl) one's zakat

1 'Indyah, p. 126.

'Mintej, p. 265; Wajijf, p. 87; Umm, p. 18; Kharashi, p. 126.

326 MOHAMMEDAN THEORIES OF FINANCE

for future disbursement or of actually disbursing it. Ac-
cording to the Shafiites, it is not necessary in giving the
zakat to intend it for the zakat of a definite article, the zakat
in such case applying to zakat due on any article. Ac-
cording to the Malikites, should the part set apart for zakat
be destroyed before its disbursement to the poor, the zakat
debt is nevertheless discharged.

May the intention of the sultan or his agent replace
that of the zakat payer, when the latter, forced to pay
his eakat dues, fails to observe the requirement of inten-
tion? The question is answered differently by different
authorities. According to the prevalent Shafiite view x the
intention of the sultan or his agent is sufficient. The Mali-
kite * view is to the same effect. According to both schools,
the intention of the guardian replaces that of his ward who
is a minor or insane.

Finally, the Hanifite * views on the matter are as follows :
According to al-Tahawi, if the imam collects the zakat by
force and disburses it to its lawful beneficiaries, the zakat
obligation is discharged. According to the accepted view,
(mufta bih) in such cases the zakat is discharged only as re-
gards apparent property over which the imam has jurisdic-
tion even if he should fail to disburse it to its beneficiaries.
In the Khaniyyah the validity of such a view is questioned
on the ground that intention is entirely absent. One doctor
observes that the zakat is not collected by force but that the
owner is told to pay it of his own will. The Durr, while
agreeing with the premise of the last view remarks that the
difficulty may be avoided by forcing the cattle owner,

1 C/mm, p. 19; Minhdj, p. 265; Mugni, p. 403; Wafts, p. 87.

•Kharashi, p. 130; Dardir, p. 128.

8 B&br, p. 227 ; Durr, p. 137 ; Shilbi, p. 257.

COLLECTION AND DISCHARGE OF THE ZAKAT 327

through imprisonment, to pay his zakat of his own accord ;
for, it is argued, duress does not preclude consent.1

May the settlement of the zakat debt be delayed or must
it be made immediately after the zakat falls due? Accord-
ing to Abu '1-Hasan al-Karkhi the property owner becomes
a sinner by delaying the settlement of his zakat debt It is
related that according to Muhammad Ibn al-Hasan the per-
son who delays the settlement of his zakat debt without an
excuse is no longer acceptable as a witness. Muhammad
made a distinction between zakat and pilgrimage and did
not allow delay in zakat because in doing so the rights of
the poor would be encroached upon. On the other hand,
according to Abu 'Abdallah al-Balkhi, it is permissible to de-
lay the payment of zakat, because the divine commandment
concerning the giving of zakat is indefinite as to time limit
(mutlaq). According to a report from Hisham, Abu Yusuf
held the same opinion on the ground that while pilgrimage
must be rendered at a certain season and one may not know
whether he shall live until the next season, by the delay of
zakat no harm is done because any time is fit for its dis-
charge.2

It is stated in the Ma/wo'/ however, that according to
the opinion at present generally accepted the immediate
(faivr) settlement of the zakat is necessary. By immediate
settlement is meant that the obligation must be settled at the
earliest opportunity.

According to the Shafiites,4 the zakat must be disbursed

1 The doctors arc concerned about the discharge of the sakdt obliga-
tion because, unless it is discharged, the amount collected would not
be the zakdt, and the state would have confiscated a Moslem's prop-
erty without just cause.

1 Mabstt, p. 169.

1 P. 157-

* Minhdj, p. 264 ; Wajis, p. 87.

328 MOHAMMEDAN THEORIES OF FINANCE

to its beneficiaries as soon as possible (tamakkun). Accord-
ing to al-Shafi'i,1 the settlement of zakat is considered pos-
sible (tamakkun min al-ada') if the owner can actually dis-
burse it to the collector or the zakat beneficiaries, or, as the
Minhaj puts it, if the property and the beneficiaries or the
collector are present, provided, according to the Mugni, that
the owner is not occupied with an important religious or
worldly function, such as prayer or eating, respectively.
If only one beneficiary is on hand, he is given his particular
share, and is not made to wait until the required number of
beneficiaries has appeared. According to the Wajiz one
does not commit sin by delaying disbursement in order to
disburse his zakat to a more deserving person or to his kin,
but if the property meanwhile should be destroyed he makes
good the zakat. In the case of property situated elsewhere,
the disbursement of zakat is considered to have been " pos-
sible " as soon as a time long enough to reach the property
in question elapses. The Malikite z view is analogous.

May the zakat debt be settled before it has yet become
due (ta'jil)? According to the Hanifites this is allowed.
According to Malik, however, an obligation may not be
settled before it has fallen due. According to the preva-
lent Malikite doctrine,8 although anticipation is abominable,
it is nevertheless allowed as regards cattle, gold and silver,
and, with respect to professional traders (mudlr) only,
also in trade articles before their sale, and debts before
their receipt, provided the debts have not arisen from
loans. Such anticipation may not, however, be by over a
month. Al-Sarakhsi, in support of the Hanifite view, in-
vokes the example of the Prophet who received in advance

1 Umm, p. 44; cf. Minhaj, p. 264; Wajiz, p. 89; Mugni, p. 401.
" Kharashi, p. 126.
• Kharashi, p. 128.

COLLECTION AND DISCHARGE OF THE ZAKAT 329

from al-' Abbas the zakat of two years, and argues that
the sakat is due when there is a productive nisab, and
that the lapse of the year is only in order to give time for
the payment of the debt and may be disregarded without
affecting the obligation. However, it is not allowed to an-
ticipate the payment of the zak&t if there is not already a
complete nisab. According to al-Shafi'i, anticipation of
sakat is allowed only for one year. According to Zufar,
anticipation of zakat for more than one nisab is not allowed,
though it may be allowed for more than one year. If after
the anticipation of the zakat it turns out that at the end of
the year the amount anticipated does not fall due, according
to al-Sarakhsi the zakat receiver may not be forced to return
the part that has not fallen due. According to al-Shafi'i, if
at the time of discharge it was made clear to him that he
would have to reimburse such part of the sakdt as would
not have fallen due at the end of the year, it may be taken
from him; otherwise the taxpayer has no right to demand
restitution of the sakdt paid. Al-Sarakhsi remarks that
zakat is paid to the poor as an offering to God and may not
be reclaimed afterwards.1

The conditions necessary for the anticipation of zakat
are summarized in the 'Alamkiriyyah* as follows: (i) At
the time of anticipation the year should have already begun
to run on at least one complete nisab. (2) The nisab or
nisabs for which the zakat has been anticipated must be
complete at the end of the year. (3) The original nisab
should not disappear entirely in the interval. An example
of anticipation for one year for many nisabs would be the
payment in advance of zakat for one thousand dirhams for
one year by one having two hundred dirhams. If this per-

tt, PP. 176-8; cf. Umm, p. 17; Minhaj, p. 266; Waji*. p. 87.
' P. 247.

330 MOHAMMEDAN THEORIES OF FINANCE

son in the course of the year acquired more wealth or made
profits so that at the completion of the year he was pos-
sessed of one thousand dirhams, the anticipation would be
valid and the zakat of the one thousand dirhams for the
year past discharged. If, on the contrary, at the comple-
tion of the year he was still possessed of two hundred dir-
hams only, the anticipation would not be valid, and should
he acquire more money after the year, he would have to pay
its zakat when a year passed after its acquisition. If one
should pay in advance zakat for two thousand dirhams
while he possessed only one thousand and intended the ad-
ditional zakat of one thousand dirhams for the second one
thousand dirhams he would come by during the year or,
failing that, for the zakat of the original one thousand dir-
hams for a second year, it would be valid.

The anticipation of tithe is not allowed with respect
to what has not yet been sown, or to fruits that have
not yet appeared. Abu Yusuf, contrary to Abu Hanl-
fah and Muhammad Ibn al-Hasan, allows anticipation in
fruits whose pollen has not appeared (qabl zuhur al-tal'),
and crops which have not grown (qabl al-nabat). Abu
Yusuf's ground is that the fruits and the crops will grow
of themselves by mere lapse of time. The argument of
the others is that anticipation is not valid unless the cause
(sabab) of tithe is present, but that the palmtrees, for
instance, evidently are not the cause of tithe, for the owner
may cut them down without incurring responsibility for the
tithe. The anticipation of the tithe of what has not yet
been sown is, however, unanimously held to be void, because
land, in and of itself, is not the cause of tithe, but a special
act is needed, namely, cultivation, before there may be any
question of tithe.1

lMabs&t, part iii, p. n; ' Alamkiriyyah, p. 261.

COLLECTION AND DISCHARGE OF THE ZAKAT 33!

According to the Shafiites,1 anticipation is not allowed
before the fruits have ripened or the grains have hardened.
Some Shafiites express the opinion that anticipation is al-
lowable after the grains have appeared and before they have
as yet hardened. Still others, with respect to grapes and
dates, hold that anticipation is not allowable before they
have been dried; this view apparently is preferred by al-
Gazzali, who mentions it first, if one might so infer from
the analogy of the Hanifite usage. According to the Mali-
kites, anticipation in fruits and crops is not allowed.2

In the settlement of the sakat debt the substitution of
values (daf al-qiyam) is allowed. Thus one may pay three
fat sheep instead of four medium-sized ones or pay, instead
of bushels of wheat, their value in dirhams. Al-Shaf?i
holds that this is not lawful because it would result in the
setting aside of the express shari'ah prescription (nass)*
Consequently he does not allow substitution so long as
it is possible to pay the very thing due as zakat. Accord-
ing to the Malikites, substitution of values, except as be-
tween gold and silver, is unlawful.4 The Path,6 in reply
to al-Shafi'i, says that the cause of the divine prescription
(nass) is the desire to provide for the poor the sustenance
(rizq) promised them by God. Indeed, the Almighty
promised a sustenance to every one, but he gave to some
the means of acquiring it, such as trade, while he de-
prived others of all means; accordingly he commanded
the rich to give them from God's property a certain propor-
tion as sakat. Since this is the cause of the prescription and

lMinhdj, pp. 266-7; Wajiz, p. 87.

'Kharashi, p. 128.

* Hiddyah, p. 144 ; Mojmo', p. 166.

*Hiddyah, p. 144; Majma', p. 166; Umm, p. 19.

4 Kharashi, p. 125.

8P. 144.

332 MOHAMMEDAN THEORIES OF FINANCE

the kinds of property specified for payment as zakat by no
means exhaust the needs of the poor, the specifications of
the shari'ah are interpreted in a liberal way, and the payment
of the value is considered as the main object in view. It is
not therefore a setting aside of the divine prescription
(nass) by the process of ta'lil for purposes of analogy, as
some have claimed, but on the contrary if it is at all a case
of analogy, it is one of establishing by analogy all the var-
ious implied prescriptions (nass) in regard to the divine
promise to provide a sustenance to every poor man; there-
fore it is only a case of setting aside the construction that the
divine prescription regarding the payment as zakat of cer-
tain definite animals precludes the payment of their values.
The Hanifite construction then, instead of being a case of
analogy, is merely one of interpretation (madlul) of the di-
vine prescription. Indeed, this construction is suggested
by the context of the divine prescription. Consequently
the value of the identical thing due as zakat is not a substi-
tute (badal) for that thing (asl) — since in that case the sub-
stitute could be paid only when the original thing was not
in existence, — but both the original thing and its value are
equally obligatory. The zakat payer therefore has the
option between four things: ( i ) He may pay the very thing
due as zakat, e. g., the sheep or wheat. Or, even if he
should possess the very thing due, he may pay its value in
one of the following three ways: (2) He may pay an older
animal and be reimbursed by the collector for the difference.
(3) He may pay a younger animal and make up the differ-
ence to the collector. (4) Finally, he may pay the exact
equivalent of the thing due as zakat ; for instance, he may
pay three fat sheep in lieu of four middle-sized ones, or
their value in money.

It must be pointed out that when the zakat debt is paid
in terms of an equivalent the latter may not differ from the

•

COLLECTION AND DISCHARGE OF THE ZAKAT 333

original debt in quantity in order to allow for a difference
in quality between them, if they are fungible (mithli) goods
of one and the same genus.1 For example, it is not allowed
to pay, in settlement of a zakat debt of four bushels of
wheat of medium quality, three bushels of good quality ; or
to give, in lieu of two dresses of inferior quality, one dress
of better quality, although the three bushels of good wheat
may be worth the four bushels of inferior quality, or the
one superior dress may be worth the two inferior ones.
The reason for this is that when articles subject to the pro-
hibition of usury are exchanged for one another, no allow-
ance may be made for a difference in quality between them
if they are both of the same genus. Such articles are ex-
changed in equal amounts only. Zufar held the opposite
view, arguing that the prohibition of usury applies only as
between man and man, not God and man, as is the case in
zakat.

While the zakat payer has the four options mentioned,
the collector may nevertheless refuse to accept the second
alternative, namely, that of being paid more than the
zakat and of reimbursing the difference, but he may not
refuse the other three. According to the author of the
Bada'i'? the collector may refuse only when the zakat payer
offers in payment of his zakat debt a fraction of an article,
for instance, a part of a hiqqah, instead of a bint labiin.
Others say that the above four options belong to the col-
lector, but this view is not generally accepted.

According to Abu Yusuf and Muhammad Ibn al-Hasan,
when the zakat payer pays the value, instead of the very
thing due as zakat, he pays its value on the day of pay-
ment,8 but according to Abu Hanlfah, he pays its value on

1 Mabsat, p. 203; fdmf, p. 313. * Majma', p. 166.

s Cf. Kharashi, p. 125.

334 MOHAMMEDAN THEORIES OF FINANCE

the day on which the zakat fell due (yawm al-wujub).
Other canonists hold that in the case of sawaim animals one
may pay the animal itself or its value on the day of pay-
ment, and in the case of other than sawa'im animals, the
thing itself or its value on the day on which the zakat fell
due. However, when one settles in any of these ways, he
may no longer change to another, e. g., in paying the zakat
of two hundred measures of wheat worth two hundred dir-
hams on the day of wujub (that is, when the zakat fell due)
the owner may give five measures of wheat, and this is not
controverted, or according to Abu Hanifah, he may give
five dirhams instead, even if the price of wheat should
meanwhile have changed, but according to his two disciples,
if the price on the day of settlement should be four hun-
dred dirhams, he pays ten dirhams. The same is true of
the sawa'im animals.1

If the property on which zakat fell due is dayn, as dis-
tinguished from 'ayn* its zakat may be settled in terms of
'ayn wealth. Thus a person having a claim of two hundred
dirhams on which zakat is due, may give, in settlement of
the same, five dirhams in cash, because dayn as compared
with 'ayn is defective (naqis) and the (ayn is complete

lJdm?, p. 313.

2 Dayn means wealth, the payment of which attaches as a liability to a
legal person (dhimmah), as the result of a transaction ('agrf) or a loan,
or as damages for property destroyed (istihldk). Dayn by extension
also means the class of goods called mithli (fungible) ; that is, goods
whose price (thatnan) in sale is determined on the basis of weight
(wazn), or volume (kayl), or number ('adad), and among the various
units of which there is no difference of value due to human art (Tech.
Diet., pp. 502, 1343). The definition of dayn given in the Majallah (art.
158) in a way combines these two meanings. According to it, a stated
portion of a heap of wheat is dayn before it has been set off. 'Ayn is
the opposite of dayn in the last sense, meaning that which is definite
and has a bodily existence. Thus, in the above example, the said por-
tion becomes 'ayn by being set off.

COLLECTION AND DISCHARGE OF THE ZAKAT 335

(kftmil), and the settlement of the defective in terms of the
complete is valid. On the contrary, the settlement of the
complete 'ayn in terms of the defective dayn is not valid,
and, therefore, the zakat debt is not discharged if a person
wants to pay the zakat of two hundred dirhams which he
possesses (*. e., 'ayn) in terms of the five dirhams which a
poor person owes him (i. e., the dayn) ; namely, by absolv-
ing him from the debt intending it for his own zakat debt
on the two hundred dirhams. Finally, as regards the settle-
ment of the zakat of dayn wealth in terms of dayn wealth,
if the wealth on which zakat is due is of the kind of dayn
which becomes fayn it is not valid; otherwise it is valid.
Thus if a person has five dirhams owed him by a poor per-
son and two hundred dirhams by another person, he cannot
settle the zakat of the two hundred by making a present of
the five to the debtor as alms, because the two hundred dir-
hams will become (ayn when collected, and the settlement
of the zakat of 'ayn wealth in terms of dayn is not valid.
An example of the opposite case would be that of a person
who wanted to settle the zakat of two hundred dirhams
owed him by another by making a present of those dir-
hams to the debtor and intending it for his zakat debt.
However, this is allowed only in case the debtor is a poor
person, although there is also a view to the contrary. It
goes without saying that the zakat of {ayn wealth is dis-
charged if paid in terms of fayn wealth; if, for instance,
one pays the zakat of two hundred dirhams he possesses by
paying five out of those two hundred.1

If the rebels and schismatics, i. e., Moslems who refuse
to acknowledge the authority of the imam, collect once from
the Moslems the zakat of their sautfim animals, or the
tithe, neither is collected again from the owners by the

1 Kasani, pp. 42-3.

336 MOHAMMEDAN THEORIES OF FINANCE

imam when he recovers control over them. This is because
taxation is based on protection and in this instance the
imam has failed to protect them. However, a person taxed
by the 'ashir of the rebels once is taxed again by the 'ashir
of the Moslems, for it was his own fault, and not that of
the imam} to have passed the 'ashir of the rebels.1 Accord-
ing to the Majma' the taxes are not collected by the imam
even if the rebels had not collected them. However if the
zakat taxes collected by the rebels have not been disbursed
by them to their lawful beneficiaries, the property owners,
as between them and God, should repeat their zakat dues by
paying them secretly to the poor. In one opinion of the
matter, the zakat and the tithe obligations are discharged
even if the proceeds have not been disbursed to their lawful
beneficiaries because in that case the sin belongs to the
authorities.2

Some express the view that zakat paid to rebels and in
general to any tyrannical person, if paid with the intention
of zakat, is discharged also as between God and man and
therefore need not be paid again by the owners. It is argued
that the rebels and tyrants are in reality poor in view of
the fact that they would be reduced to poverty if they
restored the properties which they seized unjustly, and
that the zakat after all has been paid to its lawful bene-
ficiaries.3 The author of the Hidayah, however, expresses

1 Majma', p. 173.

* Majma', p. 167 ; Hiddyah, 'Indyah, and Fat h, p. 150 ; Kasani, p. 36.

8 The Hanifite doctors (Kasani, p. 36; Path, p. 151) in this connec-
tion cite a certain fatwa according to which it was declared lawful to
pay the zakdt to 'AH Ibn 'Isa, a governor of Khurasan, on the ground
that if he offered damages for the many injustices he had committed
he would be a poor man. The case of a governor of Balkh is even
more interesting. This governor having committed perjury, had to
offer expiation (kaffdrah'). A fatwa was given that in his case the
expiation should consist in fasting. Thereupon the governor is said to
have begun crying, saying to his attendants : "They tell me : ' What you

COLLECTION AND DISCHARGE OF THE ZAKAT 337

the view that the zakat should be repeated even if the taxes
paid were intended for it. According to the Path, this is
necessary because the person who collects the sakat should
know why he is collecting it, or, perhaps, because the zakat
has not been disbursed to its lawful beneficiaries.

In the Durr l it is stated that there is a dispute as to
whether the above applies to the zakat of non-apparent
property as well; the view recommended in the Mobs fit
being that they are alike. This is also the view expressed
in the 'Inayah. In the Fatawa 'AH Efendi,2 it is stated that
the custom duties paid nowadays by Moslem traders cancel
the zakat dues of the latter if they are intended by them for
those dues.

According to al-Haytami,3 to the question whether the
zakat obligation is discharged in case the imam seizes
property unjustly and the owner intends it for his zakat
dues, the reply is made that the obligation is discharged if
the imam knew his intention. It is added, however, that in
case the zakat is collected by other than the imam it is not
necessary that the latter should know the intention of the
owner. With regard to the imposts (mukus) of later
Moslem states, al-Haytami says that they constitute a pay-
ment of zakat only if they are collected under the name of
zakat and intended by the owners for their zakat dues;
that consequently the so-called 'ushur taxes of later times
are in reality extrz-sharfah taxes (mukus), and do not re-
owe [before God] in the way of restoration [for injustice committed]
is more than what you own, and therefore your expiation (kaffdroh)
is that of a person who owns nothing."' (According to the law, the
expiation for perjury for people who have the means is to free a slave
or to feed or clothe ten poor persons; on the contrary, for those who
cannot afford this, it consists in fasting for three consecutive days. Cf.
Durar, p. 335.)

1 P. 137- " P- J5-

3 Al-Fatdiva al-Kubra, vol. ii, p. 48.

338

MOHAMMEDAN THEORIES OF FINANCE

suit in the discharge of the zakat obligation even if so in-
tended.

According to al-Mawardi,1 if the zakat collector is tyran=
nical in collecting the sadaqah but just in disbursing it,
the zakat obligation is discharged when the zakat is given
to him. Conversely, if he is just in collecting it but unjust
in disbursing it, the obligation is not discharged as between
God and the owner — whether the collector collects the zakat
by the consent of the owner or whether he collects it by
force. In such case the owner must pay the zakat over
again to its lawful beneficiaries. According to the Mali-
kites,2 this applies only in case the owner paid the zakat of
his own accord. According to Malik, the obligation is dis-
charged and the owner need not repeat it.&

According to al-ShafVi,4 if after the disbursement of
zakat by the public distributor (qasim) to a person, it ap-
pears that such person was not a lawful beneficiary, the
zakat is taken back from him to be disbursed to the proper
person, but the zakat obligation of the owner remains dis-
charged whether or not the collector fails to take the zakat
back. In case of failure the collector is not liable for dam-
ages because he is only a trustee in this matter. The Mali-
kite 5 view is similar. If in the above case it is the owner
himself who is disbursing the zakat, according to al-ShafTi,
in one view of the matter, he must take the zakat back in
order to disburse it to the right person, and if he fails to do
so, he must pay the zakat over again to the right person if
his obligation is to be discharged. In the other view, the

1 Mawardi, p. 209.
;*Kharashi, p. 128.
* Cf. Mudawwanah, p. 45.
4 Utnm, p. 63.
6 Kharashi, p. 128 ; 'Adawi, ibid.

COLLECTION AND DISCHARGE OF THE ZAKAT 339

owner, too, like the collector, need not repeat the zakat; for
by paying it to a person whom he thought to be a lawful
beneficiary he has fulfilled his obligation. The Malikite
view is again similar. Moreover, according to the Mali-
kites, if a person disburses his zakat to a person who he
believes (zann) is not a beneficiary of the zakat, and later
it appears that he was a beneficiary, his obligation is dis-
charged ; but the zakat payer becomes a sinner by having
paid his zakat to one believed to be the wrong person.1

SECTION IV

The Place of Intuition (Taharri) in the Discharge of the
Zakat Obligation 2

When the zakat is disbursed directly by the zakat payer
himself, rather than by the state, the question whether or
not the obligation is discharged depends on whether the
person to whom the zakat was disbursed was a lawful bene-
ficiary of the zakat. If the zakat payer is in doubt as to this
last point, he may as a precaution resort to his intuition
( taharri) for determining it. In this connection the follow-
ing four cases are conceivable :

( i ) The zakat payer gives the zakat to a person, without
at all doubting the latter's financial need, and without resort-
ing to the process of taharri, or asking some one about it.
In this case the zakat obligation is lawfully discharged
(ajza) and the payer is rewarded by God for it, provided it
does not appear later that the person to whom the zakat was
given was rich. This is because the act of a Moslem is
construed to be valid until the contrary appears to have
been the case. Besides, the presumption is that the person

1 For the rules to determine the right person for disbursing the zakat,
«ee infra, under Expenditure of Zakdt Taxes.
J j'absut, part x, p. 186; 'Alamkiriyyah, vol. v, p. s&P-

MOHAMMEDAN THEORIES OF FINANCE

who received the zakat is poor, for man is born poor and
is assumed to remain so until there is evidence to the con-
trary. Consequently, the zakat obligation is considered to
have been discharged until it becomes evident that the per-
son who received the zakat was rich, and in that case the
zakat must be paid again.

(2) The zakat payer is seized with doubt concerning the
status of the person to whom he intends to pay his zakat,
either because that person looks like a rich man or because
the zakat payer inclines to the belief that he is rich. How-
ever, notwithstanding his doubts, he settles his zakat to
him. In this case the zakat obligation is not legally dis-
charged, because after once doubting his poverty, it was the
duty of the payer to turn to his intuition in order to reach the
truth. Having failed to do this, he has forfeited the privi-
lege of presumption granted him by the law. If, however he
finds out later that the man was poor, his payment of zakat
becomes valid in spite of the fact that he omitted to resort
to taharri. This is because the purpose of taharri is the
determination of truth, and when that purpose has been
achieved in some other way the obligation of taharri lapses.

(3) The zakat payer is in doubt and to clear his doubts
resorts to the process of taharri. His intuition tells him
that the man is rich, yet in spite of it he settles his zakat to
him. Clearly in this case the obligation is not discharged
and must be fulfilled over again, unless the zakat payer
finds out that the man was really poor, in which case he
need not pay the zakat over again. This is the view gener-
ally accepted, although some Hanifite doctors believe that
Abu Hanifah and Muhammad Ibn al-Hasan required the
zakat to be repeated.

(4) The zakat payer resorts to the process of taharri and
the conviction dawns upon him that the person is poor, and
thereupon he pays the zakat to him. It is considered a case

COLLECTION AND DISCHARGE OF THE ZAKAT 34 x

of resort to taharri if the taxpayer without actually consult-
ing his intuition pays his zakat to a person sitting in line
with the poor, or dressed like a poor man, or if he gives his
zakat to one after his begging for it. In such cases whether
or not it is later found out that he actually was poor,
the zakat obligation is by unanimous opinion discharged.
According to Abu Hanlfah and Muhammad the obligation
remains discharged, even if it later appears that he was
rich. Abu Yusuf held that the zakat must be paid
over again. It is stated in the ' Alamkiriyyah that in such
case the person who received the zakat must return it to the
zakat payer who, in case the zakat is not returned, acquires
only the thawab of kindliness but not that of sadaqah. The
argument of Abu Yusuf for dissenting from the others is
that when later it appears that the zakat receiver was rich,
the zakat payer's previous intuition to the contrary patently
appears to have been erroneous, and may no longer be taken
into account, and that consequently the zakat must be paid
over again. Moreover, the decision of a case through intui-
tion is valid only in case the rights of third parties are not
involved, which is not true in the present case, the poor hav-
ing a right in the zakat. The others reply that the zakat
payer had discharged the obligation imposed on him by the
sharfah and there is no more ground for requiring a re-
petition of the zakat f than when nothing is discovered
about the zakat receiver's status. In fact, the zakat payer is
obliged to pay his zakat to the person who, in his opinion,
is poor, but this person need not be poor in reality also,
since that is impossible to ascertain. Indeed one sometimes
cannot tell his own financial state, and how can he be ex-
pected to tell that of others ! Furthermore, a shari'ah obli-
gation never exceeds human capacity, and in this case the
utmost the zakat payer can do is to determine the state of
the zakat receiver by means of inferences based on his ap-

342

MOHAMMEDAN THEORIES OF FINANCE

pearance, or the fact of his sitting in line with the poor, or
his begging for alms and the like, or, if such circumstances
are not at hand, by resorting to his intuition, the only re-
maining means at his disposal. Besides, when later it ap-
pears that the zakat receiver was in reality rich, it is no
longer of any avail, since by unanimous opinion the zakat
payer may not recover the zakat or its equivalent from the
zakat receiver, and therefore it would be entirely unjust to
require him to settle the same obligation twice over. The
above applies also in case the zakat receiver turns out to be
the zakat payer's father or son, or according to a Zahir-al-
riwayah report, even a Hashimite or a dhimmi. The sakat
likewise remains discharged if the sakat receiver appears
to be the slave or mukatab of a rich person. If however
the sakat receiver proves to be the sakat payer's own slave
or mukatab, by unanimous opinion the zakat must be paid
over again, since a condition of zakat is that it must be
"given" (ifta), but this does not happen until the thing
given ceases to be the sakat payer's own property.

SECTION v

The Use of Cunning in the Discharge of the Zakat
Obligation x

According to the Hanifite doctors, resort to cunning
(hilah), in order to invalidate the right of a third person, or
to involve it in doubt or confuse it, is unlawful and abomi=
nable, but resort to cunning in order to escape from engag-
ing in an unlawful act, or in order to be able to do an act
which is legitimate (halal) is a good deed. According to
Abu Yusuf, resort to cunning is permissible even in order
merely to avoid incurring an obligation (imtina 'an al-

1 'Alamktriyyah, vol. vi, pp. 559-62; Mabsut, pp. 166-7: cf. part xxx,
p. 209; Majma', p. 161.

COLLECTION AND DISCHARGE OF THE ZAKAT 343

wujub) before the obligation has been as yet contracted.
The use of cunning is justified by the following verse of
the Koran : l

" Take in thy hand a bundle of dry herbs and strike
with it, and do not break an oath." This was advice given
to Job, who had sworn that he would beat his wife by in-
flicting on her a hundred stripes. All the Hanifite doctors
agree that the tenor of the above verse has not been abro-
gated (naskh) by a later prescription.

The Hanifite doctors have disagreed as to the legitimacy
of resorting to cunning in order to avoid the payment of
zakat. According to Muhammad Ibn al-Hasan such a
practice is abominable, because it results in the prejudice of
the poor and because the giving of zakat is an act of wor-
ship and it does not befit a believer to try to avoid it. Abu
Yusuf, however, holds the opinion that there is nothing to
condemn in such a practice because it merely consists in an
attempt to avoid the incurring of an obligation, and there-
fore it does not result in the prejudice of third parties, since
their rights accrue only after the obligation has been in-
curred. Moreover, he argues, one is sometimes afraid that
he may not be able to carry out a divine commandment and
that he may so become a rebel, and in such cases it is advis-
able to avoid coming at all under the commandment in
question, since to avoid a sin is itself an act of submission.
For instance one may avoid getting rich in order to be free
from the obligation of performing the pilgrimage or paying
zakat. What is therefore blameworthy is the avoiding of
zakat after it has once been contracted, but not before it has
as yet been incurred. • The view of Muhammad is the one
generally accepted.

The doctors are then unanimous in holding that the zakat

1 Chap. 38, verse 43.

344 MOHAMMEDAN THEORIES OF FINANCE

may not be avoided after it has once been incurred. Abu

Yusuf himself severely condemns 1 any attempt to defraud
the public treasury.

It is not allowed, [he says], to one who believes in God and
the Last Day to refuse the sadaqah or to alienate his prop-
erty in favor of a group of people dividing it among them
in a way that the share each receives is too little to be sub-
ject to zakat, neither is it allowed for any cause or reason
to resort to cunning in order to annul (ibtal) the sadaqah.

He further cites a report from 'Abdallah Ibn Mas'ud ac-
cording to which the person who refuses to pay his zakat
is not a Moslem and is not admitted to say prayers (la salat
lahu), and the hadlth of Abu Bakr: " If they should refuse
me a halter ((iqal) of what they used to give the Prophet as
zak&t, I would indeed fight them when they refused it."

The Hanifite doctors have devised several ways in
which the payment of zakat may be lawfully avoided by
the property owner before it has as yet become due. Thus
if a person owning two hundred dirJiams desires to escape
paying zakat on them, the method is to give away as alms
one of the two hundred dirhams just one day before the
year has run out in order that the nisab may be incomplete
at the end of the year. The same end is achieved if, instead
of giving that dirham as alms, he gives it as a present to his
minor son, or makes a present to him of the entire two
hundred dirhams, or spends them on his children.

Again if a person wants to give alms to a poor person by
giving up the claim he has on that poor person and to count
the same for his zakat dues, he may not do so, because it is
an established Hanifite principle that the zakat of a definite
article (eayn) may not be paid in terms of a claim (dayn),
neither may the zakat of a claim be paid in terms of a dif-

1 Yusuf, p. 45.

COLLECTION AXD DISCHARGE OF THE ZAKAT 345

ferent claim. The following trick, however, offers a way out
of the difficulty: the creditor gives the poor an amount equal
to his claim on him intending it for the settlement of his
zakat debt, and then the debtor, after receiving the zakat,
returns it to the creditor in settlement of his debt to him,
such procedure being lawful. It is stated in the Nawadir
that Muhammad Ibn al-Hasan, when asked about his opin-
ion of this trick, answered that it is preferable to pay one's
zakat to one's debtor. In fact the earlier Hanifite doctors
used to resort to this trick in regard to their insolvent
debtors. The creditor need not be afraid that the debtor
after receiving the zakat, may refuse to give it back in settle-
ment of his debt, for the creditor can easily extend his hand
to seize the property of his debtor, if such property hap-
pens to be of the same genus (jins) as the claim he has on
him ; and should the debtor attempt to prevent him from so
doing, he can enforce his point of view by appealing to a
judge. Another way of getting at the same result is to tell
the debtor : " Name as your agent one of my servants in
order to receive this as the zakat of my property, and give
him power to settle your debt to me by paying it back to
me." When the agent receives the zakat it becomes the
property of his principal, that is, the debtor; but being also
an agent for the settlement of the debt he pays the sum re-
ceived back to the zakat payer. Shams-al-a'immah al-
Halwa'i (or al-Halwani) said that when the property owner
resorts to this trick it is advisable that the sum given to
the debtor should exceed the amount of the debt by a little
margin so that after the settlement of the debt there will
still be left something in the hands of the debtor, and there-
fore he will not be tempted to refuse to settle his debt after
receiving the money.

If the claim is a joint claim, then the other creditor is en-
titled to his share in the amount received on account. In

346 MOHAMMEDAN THEORIES OF FINANCE

order to avoid this inconvenience, one first gives the debtor as
zakat an amount in cash equal to his share of the claim. Then
he gives up his share of the claim, by making an alms of it
to the debtor, whereupon the debtor makes a gift of the
cash received to the creditor, and in this case the other
creditor is not entitled to a share in this cash, because it has
not been given in settlement of their joint claim/ Another
way to obtain the same result is for the debtor to borrow
from another person a sum equal to the creditor's share
in the joint claim, and give it to the creditor as a gift. The
creditor then returns it to the debtor as his zakat, at the
same time that he absolves the debtor from his share of
the claim, and again the other creditor cannot claim any-
thing from the cash he had received as a gift.

Cunning may be resorted to also with respect to the
zakat of sawa'im animals as follows: the owner of the
sawa'im animals exchanges them just one day before the
completion of the year for animals of the same or a differ-
ent genus, and in such case the year is dissolved and he es-
capes the zakat. Or he makes a present of the animals to a
person he trusts and after the completion of the year he
takes back his present, and in such case the year begins to
run from the date the gift has been revoked and taken back,
and so the time that has -passed before does not count
against him in reckoning the .zakat. He may repeat the
same trick every year.

It must be remembered that the giving of zakat is valid
only if the process involves a transfer of ownership (tarn-
lik) from one person to another. Consequently the zakat
obligation is not discharged if a person spends a certain sum
of money for a public work (wujtih al-birr) or the funeral
expenses (takfin) of a poor person. The dodge here is to
give the zakat to a poor person and direct him to spend it
for the purpose in view. The consequence is that the tha-

COLLECTION AND DISCHARGE OF THE ZAKAT

347

wab of the zakat belongs to the zakat payer and that of the
construction of the public work or the funeral to the poor
person who attended to it. It must be stated here, however,
that should the poor person, after receiving the zakat, refu>e
to apply it to the purpose for which it was intended, the
zakat payer would have no legal claim against him.1

The Shafiites,- likewise, consider such practices abomi-
nable * if resorted to merely in order to avoid the sakat.
They do however allow them if they are necessary, or if
the intention of avoiding the zakat is only incidental.

Finally, according to the Malikites,4 cunning does not
avail in freeing one from an obligation, either in religious
('ibddat) or in civil matters ( mii'&mal&t) . Thus if a per-
son just before the end of the year makes a present of his
property to his son or slave or, as sometimes happens, to
his wife, with the intention of taking it back after the end
of the year and so escaping the zakat of that year, the zakat
is nevertheless collected from him and it is his duty to pay
it of his own accord. It is likewise futile to resort to cun-
ning with a view to settling one's sakat in terms of one's
claims, c. g., by paying one's zakat to one's poor debtor
with the understanding that the debtor will return the zakat
as a payment on account of his debt. The later Malikites,
however, disagree as regards the case in which the debtor
pays back the zakat of his own accord.

1 Durr, p. 145.

1 An§ari, p. 353 ; Mugni, p. 370.

* It must be pointed out here that the fact that a practice is consid-
ered abominable (makrth*) does not detract from its legal validity. It
simply means that a person by committing it becomes a sinner.

4 Dardir, p. 114; cf. Kharashi, pp. 57, 59, 61, 119.

CHAPTER IV

THE FINANCIAL CONTRIBUTION FOR THE CONDUCT OF
HOLY WAR (ju'l) AND FOR OTHER PUBLIC PURPOSES

THE word " ju'l " literally means compensation for work
done, and, more specially, compensation for military ser-
vices of a substitute, hence also, the financial contribution
levied by the imam on Moslems who stay away from the war
for the equipment of those who join the army. It is related
of Omar that he equipped the bachelors at the expense of the
married, giving the bachelors the horses of the married.
Indeed, Omar was a man of great executive ability and had
the interests of the Moslems at heart, for he knew that the
minds of married people, unlike those of bachelors, go back
to their families, and that they cannot stay away from them
for long. In this way married people were enabled to stay
with their wives and protect them, and yet participate in
the war by means of their horses; and, on the other hand,
the bachelors participated in the war in body. Some say
that Omar used to do this only with the consent of the
persons concerned, and that, failing such consent, he
equipped the soldiers from the public funds. The proper
view however is that the imam has the right to levy on
the people the amount needed if there are no available
funds (mal) in the public treasury, because the im&m is
entrusted with the interests of the Moslems, and if he
should fail to equip an army for their defence the infidels
would be victorious and seize their properties, children, and
348

I''I\AKCIAL CONTRIBUTIONS 349

lives. It is therefore only wise policy to assess the people
of means for raising the necessary funds.1

This is also the view held by the later Hanifite doctors.1
If, however, there are available funds in the public treas-
ury, then it is abominable to levy this impost, since the
funds in question are destined for such purposes. Some of
the later doctors, such as the authors of the Hidayah and
the Durar, hold that it is only abominable to levy the impost
in case there are no available funds in the fa'y treasury,
but others reply that if there are, for instance, sadaqah
funds, it is still abominable to levy the impost since the
imam may finance the campaign by borrowing money from
the sadaqah funds on account of the fa'y treasury.

Irrespective of the levy of such an impost by the imam,
it is the duty of every Moslem who has the means, but can-
not fight himself, to equip another person who has not the
means but can fight. Al-Sarakhsi, in support of this, says
that the person who is able to fight needs a large amount
of money to equip himself, and, on the contrary, the
wealthy person who cannot fight himself needs some one
to ward off the evils of the infidels from himself and his
property, and therefore there is no harm in Moslems' help-
ing one another. Moreover, the wealthy person by giving
the poor fighter his equipment aids him in performing a
fard obligation (»'. e., the obligation of holy war) and this
is a commendable act on his part. If however the fighters
have the means, then it is not proper for them to receive
such help, because perfection in the performance of the
holy war obligation is reached by participating in it both in
person and wealth, and because if he received assistance it

1 Mabsut, part x, p. 20.

*Majma', p. 495; Bahr, vol. v, p. 79; Hiddyah, vol. v, p. 194; Durar,
p. 165.

MOHAMMEDAN THEORIES OF FINANCE

would be as if he performed his religious duty for a
pecuniary reward (ujrah)^

According to al-Sugdi, as quoted in the Bahr, if the per-
son who stays at home (qa'id) says to the person who is
going out to join the war (shakhis) : " Take this property
and fight with it," it is not a case of being hired for fighting
the holy war and is permissible, but if he says : " Take this in
order to fight with it," it is a case of being hired and is
not allowed.

According to Malik,2 people in Medina used to practise
the giving of ju'l ; those who stayed at home equipping those
who joined the colors. Malik therefore did not see any
objection to its practice as between two stipendiaries of the
Dlwan. Ibn al-Qasim, however, disapproves of stipen-
diaries' sending in their place non-stipendiaries by paying
their expenses.

According to the Shafiites, it is not allowed to hire a
Moslem to fight, but the stipends which the soldiers receive
from the state are not a case of rental. If the imam assigns
to a Moslem the task of washing a dead Moslem, he is not
given a wage if the dead person has no estate and the treas-
ury has no available funds.3

Al-Mawardi,4 in discussing the duties of the public in-
spector (muhtasib) with respect to the enforcement of acts
recommended and prescribed by the shari'ah ( amr bi 7 maf-
ruf) , extends this idea of forced assessment from the carry-
ing out of the holy war to every undertaking which re-
dounds to the benefit of Moslems as a whole as follows: 6

1 Mabsut, part x, p. 75.

2 Mudawwanah, part iii, pp. 43-6.

3 Wajiz, vol. ii, p. 189.

4 Pp. 4H-3.

5 The general nature of the wording used by al-Mawardi would ind'-
cate that what he says in this connection applies to all the residents

FINANCIAL CONTRIBUTIONS 35!

If the water supply of a city is cut off or its walls are
dilapidated, or if needy wayfarers come to it, there is no
obligation for the people of the city to restore the supply
of the water or build the walls or to aid the wayfarers so
long as there are available funds in the treasury. This
would also apply if their mosques and worshiping places
(masjid) were dilapidated. If, however, there are no
available funds in the treasury, then the obligation of doing
the above rests upon all the people of means (dhu 'l-mik-
nati) in general though upon no one of them in particular.

Should the people of means undertake these tasks, the
public inspector's right to order them lapses, and the former
are not required to obtain permission for aiding the way-
farers or rebuilding what has been already demolished.
However if they want to demolish what is dilapidated in
order to rebuild it, they are not given the above prerogatives
if, for instance, the matter concerns the walls of the mosque
of all the inhabitants of a city. They must then obtain the
permission of the authorities (wall al-amr), not of the
public inspector; furthermore, they have to offer beforehand
guarantee that they will build it. It is not, however, neces-
sary to obtain the permission of the authorities as regards
worshiping places of tribes and clans which are not used by
many people (fltna khassa). It is the duty of the public
inspector to require the people who demolished a building
to build it up, but he may not force them to complete build-
ings begun by them for the first time.

When the persons of means desist from building and
repairing the dilapidated buildings, if residence in the city
is still possible, or if the water supply, although scanty, is

(nds) of the Moslem state, whether Moslems or dhimmis. Of course,
when the contribution is levied en the dhin:it:is it is a secular impost
and the general remarks made concerning religious taxes do not apply
to it.

352 MOHAMMEDAN THEORIES OF FINANCE

sufficient, the public inspector leaves them in peace. If,
however, residence in a city becomes impossible on account
of the cutting off of its water supply or the collapse of its
walls, the authorities do not allow the residents to abandon
their city, if — it being a frontier city — its abandonment
would result in the prejudice of the " Moslem world ".
On the contrary, the persons of means are required to meet
the emergency, in the way such untoward contingencies
(nawazil) are met. The duty of the public inspector, on
his side, is to inform the sultan about the matter and to
incite the people of means to meet the emergency.

If, however, the city is not a frontier city whose aban-
donment would result in the injury of the "Moslem world",
the case is easier to deal with. The public inspector in
such case has no right to force the inhabitants (ahlahu) to
rebuild it, because the sultan is more entitled to this right,
and if he has the funds, he sees to it that it is rebuilt.
But if the sultan does not possess the funds, then the public
inspector says to the inhabitants of the city : " You are free
to abandon the city or to undertake to do what is necessary
for rendering continued residence in it possible ". If they
undertake to do so, then they are all obligated to give gener-
ously what they will. The public inspector has not the
right to force any one of them in particular to undertake
to give what he would not of his own free will and consent,
whether little or much, but he says : " Let each give what
is easy for him to give and what pleases him ". Those who
can give money do so, and those who are not rich offer their
services until a sufficient amount has been raised or its rais-
ing has been insured by the people of means who have pledged
themselves for the amounts agreeable to them. Then the
work is begun and each person is held to make good his
pledge. Although such pledges are not valid in private re-
lations, in this case they have been considered valid and

FINANCIAL CONTRIBUTIONS 3-3

binding because of the general interests involved. In cases
where the interests of all Moslems are involved, the public
inspector does not proceed to deal with the situation with-
out previously asking for the permission of the sultan ; but
it is allowed to begin work without permission, if it is diffi-
cult to obtain permission or it is feared that meanwhile the
evil will grow.1

*Cf. infra, p. 437; also p. 521.

CHAPTER V
PRELIMINARY CONSIDERATIONS

SECTION I
Classification of Persons l

ACCORDING to Mohammedan theory the world at large
falls into two parts, the world of Moslems (dar al-
islam) and the world of foes, the harbis, (dar al-harb).2
An intermediate position may be assigned to the world of
allies (dar al-'ahd), although strictly speaking the ally
world is only a temporary stage, since theoretically Mos-
lems are under obligation (fard) to engage in holy war
until all infidels shall have accepted Islam or the status of
dhimmis* Indeed the ifnam may break the truce he may have

1 Kasani, vol. vii, p. 102.

2 For details concerning definitions and as to when ddr al-harb be-
comes ddr al-isldm, and vice versa, consult al-Kasani (vol. vii, p. 130),
the 'Alamkiriyyah (vol. ii, p. 330), and the Technical Dictionary (p.
466); also al-Mawardi (p. 239). Suffice it to say that the expression
ddr al-isldm applies to every land where the intdm (ruler) of the Mos-
lems holds sway and the Moslems enjoy security, and that the enemy
world (ddr al-harb) becomes moslem world when the sharl'ah pre-
scriptions are enforced in it. There is divergence of opinion as to
when the moslem world becomes enemy world.

8 Cf. Umm, vol. iv, p. 91; Wajiz, vol. ii, p. 186; Minhdj, vol. iii, p.
255 ; Kanz, vol. ii, p. 253, no. 5393 ; Kharashi, p. 406. According to the
Mugni (vol. iv, p. 193) the obligation of holy war should be fulfilled at
least once a year. The " holy war," however, may be only negative
and consist in the strengthening of defences instead of in actual aggres-
sion.

354

PRELIMINARY CONSIDERATIONS 355

entered into with the infidels on condition of payment by
them of kliaraj and jisyah, if such a course is required by
the best interests of Islam, provided however he gives them
due notice. Normally therefore the Moslem world is in a
state of war with the harbis unless this state has been ter-
minated in one of these three ways; namely, conversion to
Islam, taking of refuge in the Sanctuary (haram), and the
giving of aman. Of these three ways, only the last need
be discussed here. The giving of aman consists in pledg-
ing security and protection to the harbis and may be tem-
p rary or perpetual.

( I ) The Temporary Anum (aman ntuwaqqat) . This is of
two kinds: the well-known (ma'riif) or informal, and the
formal (muwada'ah).

(a) The Well-known Aman.1 Any freeborn Moham-
medan, man or woman, may give pledge of protection
(am&n) to a harbi or a group of harbis or even the entire
defensive force of a fortress, and thereupon the harbis be-
come mitsta'mins and are not molested, provided they can
prove by two witnesses that they have been given aman.
The imam however may repudiate such an aman and even
punish the Moslem who gave it, if the latter was mistaken
in thinking that Moslem interests required such a course.

(b) The Formal Aman or Truce Pact (muwada'ah)*
It is allowed to the imam or to a group of Moslems without
the imam's permission to make truce with the harbis (en-
emy) on condition of payment by them of a certain sum of
money or goods, unless they are renegades; such are
not given quarter, but have to choose between the sword
and Islam. The money received from the enemy is consid-
ered as jizyah if the enemy agreed to pay it before the be-

1 Cf. Wajis, vol. ii, p. 194 ; Minhdj, vol. iii, p. 271 ; Kharashi, p. 420.

2 The Shafiites and Malikites instead of muwdda'ah use muhddanah
and hudnah.

356 MOHAMMEDAN THEORIES OF FINANCE

ginning of hostilities ; otherwise it is treated as spoils. It is
even allowed to conclude a truce pact on condition of pay-
ment on the part of Moslems, if such course is indispen-
sably necessary for the furtherance of the Moslem interests.
The legal result of the pact is like that of the informal
aman, namely, the enemy enjoys security from death and
captivity, and security of property on the part of Moslems.
If a person residing in the country with which the pact has
been made, enters the country of the harbis and subse-
quently the latter country is conquered by the Moslems,
that person is treated as a musta'min. Likewise a harbi
entering the country of pact with aman, is considered a
musta'min with regard to the Moslem country also if he
has not meanwhile returned to the dar al-harb. The imam
may repudiate the pact made if that is conducive to
the interests of Islam, provided the enemy is duly notified
about it, and in such case there is returned to the enemy a
proportionate part of the tribute paid by them. This is
based on the precedent of the Prophet, who broke the agree-
ment made between him and the Meccans.1

According to the Shafiites, a valid aman of either kind
may not be annulled by the imam unless he suspects treach-
ery.2 The Malikites agree with the Shafiites as regards the
formal aman only.31 The dissolution of the pact takes place
at the time set if one has been set. If no time has been set,
the pact ends in two ways, namely, by express dissolution
by either side, or implicitly, if, for instance, the harbis go
out on the highways with the permission of their ruler in
order to rob Moslems. If the pact is made with the condi-
tion that in the country of the enemy the laws of Islam will
be enforced, it is equivalent to giving the perpetual aman.

lMajma', p. 498.

' Minhdj, vol. iii, pp. 272, 290.

8 Kharashi, p. 449.

PRELIMINARY CONSIDERATIONS

357

(2) The Perpetual Aman called 'aqd dhimmah. This
consists in the acquisition of the status of the dhimmi, and
may be expressed or implicit, as, for instance, when the
harbi enters the Moslem state by a temporary aman, and
exceeds the time limit set by the imam, or if no limit has been
set, according to the Mabsut,1 when he resides in the Moslem
state a year, but according to others, only after a time
has been set and has elapsed. Indeed, when a harbi enters
the Moslem state by virtue of an aman the imam should
notify him, that should he reside a year or more, he would
be considered as a dhimmi and would be subject to the
jizyah and the kharaj. The author of the Majma' approves
of the policy of allowing the harbis a short stay because in
the contrary case trade would stop and the Moslems would
suffer by it. If a harbi buys a kharaj land he becomes
dhimmi from the time the kharaj has been assessed on the
land, even if the time previously set has not elapsed. The
effect of becoming a dhimmi is security of property and
life. Indeed in the field of civil transactions the dhimmis
enjoy the same rights as the Moslems.2

In reply to the following question put by certain Moslems,
" How may the dhimmis be allowed to persist in what is
the worst of crimes, i. e., unbelief, by payment of a mone-
tary consideration?", al-Sarakhsi says that the object is
not the monetary consideration, but their invitation to the
Faith in the most beautiful way. In fact, as a result of the
act of covenant ('aqd al-dhimmah) the dhimmi abandons
fighting, and the person who does not fight may not be at-
tacked. Then, too, " the dhimmi by living among the Mos-
lems sees the beauties of the Moslem faith and is exhorted
to, and often does, accept Islam." !

p. 510.

* Cf. Wajlz, vol. ii, p. 201 ; Minhdj, vol. iii, p. 283.
8 Mabsut, part x, p. 77.

358 MOHAMMEDAN THEORIES OF FINANCE

It is not within the power of the Moslem state to break
of its own accord the pact of dhimmah, but the pact is not
binding (lazim) as regards the dhimmis.1 The pact is con-
sidered dissolved in three ways: If the dhimmi becomes
Moslem, because the reason in giving him the status of
dhimmi was the possibility of his conversion to Islam, and
the object in this case has been secured; or if the dhimmi
returns to the land of harbis, for by so doing he becomes
like the renegades ; except that if he is captured he is made
a slave, which is not true of the renegades; or, thirdly, if
the dhimmi fights the Moslems.

The pact is not broken, however, if the dhimmis do not
pay the taxes, for it may be due to their poverty; or if they
slander the Prophet, for this would only amount to an in-
crease of unbelief, but unbelief was not an obstacle to their
acquisition of the status of dhimmi in the first place.

The refusal of a dhimmi to pay the jizyah is not con-
strued as a breach on his part of the pact of dhimmah by
virtue of which he acquired the status of dhimmi, because
the object in view is the dhimmi 's acceptance of the obliga-
tion to pay the jizyah, but not its payment per se, and so
when he refuses to pay the tax, his previous acceptance and
the humiliation attendant on it are still there.

In the Durar it is stated that there is a difficulty involved in
this view, because to refuse to pay the jizyah is virtually to
state expressly that it will not be paid, as if one said : " I
will not pay the jizyah in the future ", and it is evident that
this makes impossible the continuation of the acceptance un-
less refusal be construed to mean delay and offer of excuses,
in which case the difficulty is removed. It may, however, be
replied that in consequence of the dhimmi' s acceptance of
the obligation the jizyah becomes a debt, as in case of sur-
etyship for wealth, and therefore if the dhimmi later says:

1 Cf. WajJz, vol. ii, p. 197 ; Kharashi, p. 447.

PRELIMINARY CONSIDERATIONS 359

" I will not pay the jizyah ", it has no legal effect beyond
entailing his imprisonment, as in the case of other debts.1

According to the Shafiites,2 the pact is broken if the
dhimmis fight the Moslems, or if they refuse to pay the
j icy ah or to obey the Moslem laws, but, unless expressly
stipulated, not if they debauch Moslem women or slander
the Prophet. Finally, according to the Malikites,8 the pact
is broken in all the four cases mentioned.

Corresponding to the three " worlds ", the Moslem, the
ally, and the enemy, there are the three classes of persons
designated as Moslems, allies (mu'nhid) and enemies
(harbi) ; besides, there are the classes of dhimmis and
musta'mins. The dhimmis are, as already explained, the
harbis who have definitely committed themselves to the pro-
tection of the Moslems, whereas the musta'mins are per-
sons who have come under that protection only temporarily.

SECTION II

Classification of Waters and Lands *

Waters are distinguished into tithe and kharaj water.'
Tithe water is the water of rivers, seas, and springs situ-
ated, and of wells sunk, in the first four ° classes of tithe
lands set forth below, or as the author of the Hidayah puts
it, it is water that has not come under the jurisdiction (wild-
yah ) of any person.

1 Majnia', p. 519.

2 Minhdj, vol. iii. p. 286; Wajiz, vol. ii. p. 203.
* Kharashi, p. 447.

' Ifojma', pp. 178, 512; Path, p. 199, also vol. v, p. 277; Jam?, p. 328.

5 This distinction is according to the Hanifites. The Shafiites an 1
Malikites ignore it because, according to them, in determining the kind
of tax to he levied on a piece of land, the status of the land-owner
and the land is more significant than that of the water used in its
irrigation. (Cf. Mawardi, pp. 262, 310.)

' 'Indyah. p. 199,

360 MOHAMMEDAN THEORIES OF FINANCE

Kharaj water, on the other hand, is the water of rivers,
seas, and springs situated, and of wells sunk, in kharaj
lands. It includes also the water of rivers dug by Persian
kings, such as the river Yazdajard, and the water of
springs and canals dug at the expense of the public
treasury.1 Likewise, according to Abu Hanifah and
Abu Yusuf, the water of the rivers Sayhun, Jayhun
(Oxus), Euphrates, Tigris, and Nile is kharaj water, be-
cause these rivers are from time to time taken under pos-
session (yad), in that in these rivers vessels often are
placed alongside one another so as to form a sort of bridge-
way on which one may pass across to the other bank. Ac-
cording to Muhammad Ibn al-Hasan, however, these rivers
are tithe rivers because they are not under the protection of
any person, but are like the open sea, and because the form-
ing of bridges referred to by the others is rare. Accord-
ing to the Path, the reason why waters which were formerly
under the possession of unbelievers become kharaj water is
because, like the rest of the property of unbelievers, through
the fact of conquest, waters, too, become booty of war and
like the lands they become objects of kharaj when left to
the infidels.

Tithe lands are the following :

(i) The entire land of the Arabs, namely, the country
extending from the borders of Syria and Kufah to the
farthest point of Yaman, or according to al-Karkhi, the dis-
tricts of al-Hijaz, Tihamah, Yaman, Ta'if, and Barriyyah.
The land of the Arabs has been considered as tithe land,
because the Prophet, and after him the four " righteous "
califs, did not impose on it the kharaj } and because the pay-
ment of kharaj involves humiliation, and the lands of the
Arabs do not deserve kharaj any more than their persons

1 Kasani, p. 58.

PRELIMINARY CONSIDERATIONS 361

deserve slavery. In fact, the kharaj is imposed only on
lands whose owners may persist in their unbelief, but the
Arabs, if they are heathens, have only two alternatives to
choose between, namely, Islam and the sword.

(2) As an exception, Basrah has been considered tithe
land owing to an ijmtf of the Companions. Abu Yusuf
says that by analogy Basrah should be kharaj land because
it is a part of kharaj country, but that analogy was aban-
doned in this case in consequence of the practice of the
Companions who levied the tithe on the lands of Basrah.1
The Shafiite view is to the same effect.3

According to al-Mawardi this view as to the lands of
Basrah being tithe lands has been justified by the doctors
of 'Iraq (i. e.f the Hanifites) who follow Abu Hani f ah on
two different grounds: the first ground is that the water of
the Tigris, which, according to Abu Hanlfah, is kliaraj
water diminishes at ebb time in the vicinity of Basrah and
that the lands are irrigated at flow time only, that is, from
sea water. Al-Mawardi remarks that this reasoning is
false in view of the fact that the flow holds the sweet water
back from the sea and prevents its mixing with the sea
water, and that consequently the lands are irrigated from
the water of the Tigris. The second ground is that the
water of Tigris and the Euphrates disappears in the Great
Swamps (Bataih) and loses its character of kharaj water
since the Great Swamps are not kharaj rivers ; consequently
when the water reappears at Basrah, it is no longer kharaj
water. Al-Mawardi after remarking that this second rea-
soning is also false, adds that the grounds invoked by the
Hanifites as justification for their view on the matter are
only pretexts and that their view in reality is based on the
ijma.' of the Companions.

1 C7. Zayla'i, vol. iii, p. 272. f Cf. Mawardi, p. 310.

362 MOHAMMEDAN THEORIES OF FINANCE

(3) All the lands whose owners became Moslems of
their own accord and have been allowed to remain in posses-
sion of their lands.

(4) All the lands which were conquered by force ('an-
wat) and divided among the victorious Moslem army, or for
that matter among any Moslems. This is because it is not
fitting to begin with kharaj in taxing the land of a Moslem
for the first time, and because the tithe is lighter than the
kharaj, and includes besides an element of worship. Accord-
ing to al-Shafi'i such lands become booty of war (garilmah)
and as such they are divided among the victorious army
who pay for them tithe, but never kJiaraj. According to
Malik, however, these lands by the very fact of conquest
become common property (waqf) of all the Moslems and
pay kharaj as a rental (kirtf).1 Abu Hanifah, on the con-
trary, gives the calif the option of dividing these lands
among the army and levying the tithe, or of leaving them to
their non-Moslem owners and collecting from them the
kharaj.

(5) The Habitations (dar) of Moslems which have been
converted by their owners into gardens, provided they are
irrigated with tithe water.3 If they are watered alternately
with tithe and kharaj water, they are still tithe lands.

(6) The waste lands (mau*at) developed (tijya') for cul-
tivation by Moslems with the imam's permission ; according
to Abu Yusuf , if the lands are situated in a tithe district ;
but according to Muhammad Ibn al-Hasan, if the lands
have been developed with tithe water.3

According to the Mukit* the principle just referred to

1 Mawardi, p. 254; Kharashi, pp. 426-7; Dardlr, p. 200. See infra,
under (4) of Khardj lands.
* Majma', p. 178.

3 Mabstit, part Hi, pp. 57-58. But cf. Mfnvardi, p. 310.
'Jam?, p. 328.

PRELIMINARY CONSIDERATIONS 363

with respect to waste lands developed for the first time ap-
plies also to lands previously developed and already subject
to kharaj or tithe, namely, that if a kharaj land is cut off
from its kharaj water and is watered with tithe water it
becomes tithe land, and vice versa. The same view is ex-
pressed by al-Zayla'i l as well as the Durar* and the Durr '
except that they restrict this to the Moslem owners only,
the non- Moslem owners always paying kliaraj irrespective
of the water they use. The Path, however, restricts this
to the case of waste lands first developed by Moslems.4

The contention of Abu Yusuf is that when a piece of land
is in a tithe district it legally becomes a dependency (taba')
of the district and pays tithe like the rest of the district, ex-
actly as the immediate surroundings of the house are a de-
pendency of the house and, like it, are exempt from taxa-
tion. Muhammad's ground is that it is not proper to
begin with kharaj in taxing the land of a Moslem for the
first time, except when the Moslem voluntarily incurs such
treatment by developing his land with kharaj, rather than
with tithe, water. Finally, the ground for the view ex-
pressed in the Mulnt is that the tax levied on a land de-
pends on its productivity and the latter on the kind of water
used. However, in the case of the non-Moslem owner the
water is disregarded, because the payment of tithe is an act
of worship which only Moslems can perform. Therefore
the non-Moslem owner perforce pays kharaj in either case.

According to al-Mawardi '' a waste land developed for

•Vol. Hi, p. 271. 'P. i77. SP- 364.

4 Path, vol. v, p. 280. According to al-Shafi'i ( Mawardi, pp. 262-3,
310), the kind of tax levied on land depends on the kind of land, not
of water used, and therefore, contrary to what Abu Hani f ah held, th •
owner of a tithe land should be allowed to use khardj water, and rice
versa,

* P. 3io.

364 MOHAMMEDAN THEORIES OF FINANCE

cultivation is subject to tithe irrespective of the water used
in its irrigation.

The kharaj lands, on the other hand, are the following:

(i) The Sawad of 'Iraq, namely, the territory included
lengthwise between Hadithah and 'Abbadan, both on the
Euphrates, and in breadth between the streams 'Udhayb
near Kufah, and Hulwan. This territory was called Sawad,
meaning black, because, owing to its rich flora it appeared
black, from a distance. The Sawad is kharaj land because
Omar in the presence of the Companions imposed on it the
khar&j.

According to the Hanifites the Sawad was conquered by
force and its lands were left in the ownership of their origi-
nal owners who may therefore sell their lands to one an-
other and in general exercise all the rights of ownership.

The Shafiites,1 while agreeing with the Hanifites that the
Sawad was conquered by force, claim that subsequently the
army was induced by proper compensation to relinquish its
property rights in the lands of Sawad, which were there-
upon made waqf for the benefit of all Moslems, and leased
in perpetuity (ijarah mu'abbadah) to the former owners
who thereby, being mere tenants, may not sell or inherit
them.2 Al-Shafi'i s says that the question whether the

1 Minhdj, vol. iii, p. 269 ; Wajis, vol. ii, p. 193 ; Mawardi, p. 302.

2 According to the Hanifite Abu Bakr al-Razi, as quoted by al-Zayla'i
(vol. iii, p. 272), there are ten different reasons against the Shafiitc
fiction about the lands of Sawad being held by their cultivators merely
on lease. The most important of these reasons are as follows : A lease
implies offer and acceptance by the parties, and in this case they are
absent; had it been a case of lease, the Companions could not have
bought any lands of the Sawad, as they have done ; it cannot be a case
of lease, for the term and object of a lease must be known, further-
more such term may not be perpetual; then, too, a lease would not
lapse on conversion to Islam, but according to al-Shan', the khardj
lapses on conversion.

8 Umm, vol. iv, p. 193 ; Muzani, vol. v, p. 192.

PRELIMINARY CONSIDERATIONS 365

Sawad was conquered by force of arms, or acquired through
treaty cannot be positively settled in view of the many con-
tradictory hadiths bearing on the matter. However, he
strongly inclines to believe certain hadiths according to which
immediately after the conquest of the Sawad one- fourth of
it was divided among one-fourth of the army who received
the rentals for 3-4 years until the calif Omar by proper
compensation obtained their consent to the return of the
lands in order that they might be made waqf for the benefit
of all Moslems. In refutation of al-Shafi'i, al-Sarakhsi says
the following :

Al-ShafVi said in his book : "I do not know just what to
say concerning the Sawad of Kufah, but I will make a guess
which is near to knowledge ", but such a statement is con-
tradictory and a sign of ignorance on the part of the per-
son who made it, for how may a guess (zann) be called
knowledge unless one of its two sides predominates on the
basis of evidence. Moreover, the conquest of Sawad by
force is too well-known to be a secret to any one and there
is no need to go to all this trouble, for al-Shafi'i now says :
" Omar made the lands property of the Moslems and made
the residents slaves, afterwards allowing them to work on
the lands of the Moslems, and the kharaj and jisyah which
he imposed upon them is a kind of impost (daribah), ex-
actly as the master arranges with his slave for an impost
on his earnings and employs him," and again he says : " He
(Omar) set them free as a favor and acquired the owner-
ship of the lands, then he leased them to the (people of
Sawad) and the kharaj he imposed on them is a rental."
However, this is absurd, for their jisyah is too well-known
to be a secret, and in fact they have been accustomed to sell
these lands to one another and inherit them from one an-
other from that time to this, and so we know that the cor-
rect view is that of our own doctors, namely, that he
(Omar) set them free as a favor and made them a present
of their lands and he imposed on them the jisyah for their
heads and the kharaj for their lands.1

1 Mabsvt, ibid; cf. Utntn, vol. iv, p. 192.

366 MOHAMMEDAN THEORIES OF FINANCE

According to the Malikites Sawad was conquered by
force and by that very fact became waqf territory.

(2) Egypt, because when it was conquered by 'Amr Ibn
al-'As, Omar imposed on it the kharaj.

(3) Syria, because concerning it there is an ijmaf. Ac-
cording to the Path 1 the tax collected "at present" from the
lands of Egypt and, by analogy, of Syria, is not kharaj but
in reality a rental, because the lands became property of the
state as the owners gradually died without rightful
heirs. According to the Malikites,2 like the lands of the
Sawad, those of Syria and Egypt were also conquered by
force and are waqf lands.

(4) All lands that were conquered by force ("anivat) and
were not divided among the victorious army but were left
to the original owners or given to non-Moslem settlers
brought from elsewhere. The Prophet made an exception
in the case of Mecca, which city, although conquered by
force and left to its owners, was not subjected to kharaj,
According to al-Shafi'i,3 Mecca was conquered by treaty.
However, al-Gazzali 4 and Malik agree with the Hanifites.
According to the Majma', this is because the lands of the
Arabs are not subject to khar&j any more than their persons
are liable to slavery. According to al-Shafi'i,5 however,
following the precedent of the Prophet with the people of
Khaybar and the tribe of Qurayzah, lands too, like chattel,
become the property of the army which conquered them,
and after deduction of the state's share of one-fifth they
are divided among the army and only pay tithe. However,

1 Durr, p. 364; Bahr, Minhah, vol. v, p. 114,

J Kharashi, p. 426.

8 Cf. Mawardi, p. 284; Minhdj, vol. iii, p. 271.

4 Wajis, vol. ii, p. 194.

6 Umtn, vol. iv, p. 193.

PRELIMINARY CONSIDERATIONS 367

the soldiers may of their own accord relinquish their rights
in these lands, and then the imdm makes them into waqf and
the state collects their rental (gallah). According to the
Malikites,1 lands conquered by force of arms by that very
fact become waqf but are nevertheless left in the hands of
their former owners in order that they may better be able to
pay the jisyah. These lands are subject to the kharaj, which
in reality is a rental, and being waqf lands, they revert to the
state, upon the death of their holders. Unlike the lands, the
buildings conquered by force, pay no rental, though they
also become waqf. However, buildings put up by the
dhimmis on waqf ground after the conquest become their
private property.

The author of the Multaqa, following al-Quduri, says
that these lands do not become tithe lands even when irri-
gated with tithe water. The author of the Hidayah, on the
other hand, quoting the al-Jami' al-Sagir, says: 2

" All lands conquered by force and irrigated by rivers
are kharaj lands, and if they are not irrigated by rivers, but
by springs issuing from them, they are tithe lands." The
author of the Path, however, remarks that the preceding
quotation can refer only to waste lands which were con-
quered by force from infidels and were first developed by
Moslems. Indeed the cultivated lands so conquered, if left
to their infidel owners, are kharaj lands, even if watered by
rain (i. e., tithe water) ; on the other hand, if such lands
were divided among the Moslem soldiery, they are tithe
lands, even if watered by rivers (i. e., kharaj water).* For
while it is unanimously admitted that in taxing the infidel
for his land for the first time, he is always taxed kharaj,

1 Kharashi, p. 426.

1 Hiddyah, vol. v, p. 280.

3 But cf. Zayla'i, vol. iii, p. 271; Durar, p. 176; Durr, p. 364.

368 MOHAMMEDAN THEORIES OF FINANCE

the Moslem's land is never taxed kharaj for the first time
unless it be that the Moslem entails upon himself such
treatment by his own consent, namely, by developing his
land with kharaj, instead of with tithe, water.1

(5) Lands concerning which the imam (i. e., the Mos-
lem ruler) has come to an agreement with their infidel
owners that the lands shall be left to them and that
they will not be forced to migrate. According to the
'Alamktriyyah* the imam, if he chooses, may impose on
these lands the tithe ('ushr) but this is in name only, for
such a tax " is in reality kharaj and it is for that very reason
that this tithe is disbursed like the kharaj ". An example
of this class are the lands of the people of Najran who had
made an agrement with the Prophet to pay on their lands a
fixed amount of kharaj. Another example is the tribe of
Taglib who had a similar treaty with Omar. Balkh and
Sugd are further examples. According to this, the lands
of Samarqand should also be kharaj lands, but because they
were on the frontier, they were made tithe lands for in-
suring the protection of the frontiers.3

In the Nutaf it is written that when the imam agrees
with a Moslem people upon a certain tribute to be paid by
them on their lands this tribute is legally a tithe, and if it is
less than the lawful rate of tithe the balance must be dis-
bursed by the people directly to the poor. This applies also
to agreements made with the infidels if they later become
Moslems.4

lMajma', p. 513; Path, vol. v, p. 280; Bahr, vol. v, p. 113; Durar, p.
176; Durr, p. 364; Jdmi', p. 328.
*Vol. ii, p. 291.

3 In other words, Moslem soldiers stationed on the frontiers were
given in fief kharaj lands, and as an inducement to military pursuits
they were required to pay on these lands the tithe instead of the
khardj, because the former was much lighter and, besides, could be paid
to the poor by the soldiers themselves.

4 Jam?, p. 330.

PRELIMINARY CONSIDERATIONS 369

According to the Shafiite view, as summed up by al-
Mawardi,1 this class of lands are the only ones which pay
the kharaj and they fall into two classes: (a) The lands
whose owners (ahl) have evacuated them, so that they came
into Moslem hands without fighting. These lands become
immobilized (waqf) in the general interest of Moslems and
are subject to kharaj, which is really a rental collected from
them forever, even if no time limit was set for it, because
the benefit derived from these lands belongs to the entire
Moslem community. Moreover, the kharaj levied on these
lands is not affected by conversion to Islam, and being
waqf lands, they may not be alienated by sale to private
individuals, (b) The lands whose owners have not aban-
doned them and which by the terms of the agreement are
left in the possession (yad) of the owners (ahl), subject
to the payment of kharaj. This class is of two kinds: (i)
The owners have by the terms of the agreement relin-
quished their rights of ownership in the lands in favor of
the Moslems. These lands become waqf (mortmain) in
the interest of all Moslems, as was the case with lands
whose owners had abandoned them, and the kharaj levied
on these lands is a rental (ujrah) which does not lapse on
their conversion to Islam, neither can they validly sell
the ownership in the lands (bay' riqabihim). However,
they are entitled to (the possession of) the lands more
than others (ahaqq) so long as they abide by the terms of
the agreement and the lands may not be taken away from
their possession, whether they persist in their unbelief or
are converted to Islam, just as land which was leased may
not be taken away from the possession (yad) of the tenant.
These people by paying the kharaj do not become exempt
from the jizyah, should they acquire the status of dhimmi

1 Pp. 254-6, also pp. 237-9; cf. Umm. vol. iv, pp. 103, 193.

MOHAMMEDAN THEORIES OF FINANCE

by settling (in the "Moslem world"); for they are not
allowed to reside for an entire year unless they relinquish
the status of ally (hukm al-'ahd) and become dhimmis.
They may however reside for a shorter time without pay-
ing the jizyah. (ii) By the terms of the agreement they
preserve their ownership (milk) in the lands but pay kharaj
on the lands in consideration therefor. According to al-
Shafi V the jizyah to be paid yearly should be a definite
sum, for there is no advantage, he goes on to say, in stipu-
lating that the kharaj shall be so much per jarib when
there is a produce, since crops may fail or be abundant, and
so the amount which will be collected is never known. This
kharaj is of the nature of a jizyah which is levied on them
so long as they persist in unbelief but lapses upon their
conversion to Islam. It is also allowed not to provide for
the payment of a jizyah. These people may sell their lands
to any persons they desire, including Moslems and dhimmis.
When they sell their lands among themselves, the amount
of kharaj is not affected, but if they sell them to Moslems,
the latter do not pay kharaj. If, finally, the land is sold to
a dhimmi, from one point of view the tax should also lapse,
because by being a dhimmi the owner remains outside of the
scope of the treaty by which the tax was collected, since that
treaty was made with the " allies " ; but from another point
of view the kharaj should not be allowed to lapse, because
the dhimmi, like the allies, is also an unbeliever.

When the kharaj lapses with respect to some of the lands
by reason of the owners being Moslems (bi islam ahlihi),
if the kharaj was assessed on the basis of area, at the rate
of so much silver or grain per jarib of area, the remain-
ing lands pay the usual rate, which is not increased to allow
for the part that has lapsed. If, however, the kharaj was

1 C/mm, vol. iv, p. 104.

PRELIMINARY CONSIDERATIONS 371

assessed as a lump sum without regard to area, according to
al-Shafi'i, the amount which lapsed on account of the
owners being Moslems is deducted from the total, but ac-
cording to Abu Hanifah the share of such Moslems is not
deducted from the total.

According to the Malikites,1 when a city comes under
Moslem rule as a result of a treaty stipulating the payment
of a tribute under the name of jizyah or kharaj, the lands
of the city in every case remain in the ownership of the
former owners who inherit and may sell them at will.
Other points, however, vary according to the terms of the
treaty as follows :

(a) The tribute may have been fixed at a lump sum
(ujmilat) without being distributed over the heads (riqab)
or the lands, e. g., at so much per tree or unit area. The
amount of the tribute in this case does not vary with the
increase or decrease of the population of the city, but re-
mains constant, and every one of the people of the city
continues to be responsible for the entire tribute until it has
been paid. When one of them dies without heirs his lands
devolve to his fellow people who become responsible for
his tribute. If some of them should become Moslems they
become exempt from tribute, but they nevertheless con-
tinue to own their lands. According to Ibn Habib, how-
ever, they forfeit their lands when they become Moslems,
because the lands are legally immobilized in order to enable
them to pay the jizyah, and consequently they may not be
inherited or sold.

(b) The tribute, on the contrary, may have been dis-
tributed over the heads or the lands, or over both. In such
case the tribute varies with the number of the heads or the
area of the lands. The latter continue to be the property

1 Kharashi, and 'Adawi, pp. 444-5 J Dardir, p. 204; cf. Ibn Rushd, Af.,
p. 280.

MOHAMMEDAN THEORIES OF FINANCE

of their owners even after conversion, notwithstanding that
in such case they become exempt from tribute. Should one
of them die without heirs, his lands become waqf property
of all the Moslems unless it be that he had willed away
one-third of such lands. He cannot, however, in the ab-
sence of heirs, will more than one-third of his lands. In case
the tribute was distributed over the lands, whether or not
it was distributed over the heads, the owners and their heirs
do not become free from the kharaj by selling their lands,
but continue to pay it. According to one doctor, in case
of sale, the kharaj should be paid by the whole community
rather than by the seller, and after his death, by his heirs
alone. According to a third view of the matter, the kharaj
should be paid by the buyer.

(6) Waste lands developed for cultivation by dhimmis
with the state's permission.

(7) Lands granted by the imam to the dhimmis from the
lands conquered from the enemy in consideration of assist-
ance rendered by the dhimmis in fighting the enemy.1

(8) Waste lands developed for cultivation by Moslems
if they have been developed with kharaj water, or are situ-
ated in a kharaj district.

(9) Habitations of dhimmis converted into gardens.
Also habitations of Moslems converted into gardens, if
they are irrigated with kharaj water.2

If a dhimmi buys a land from a Taglabi, he pays on it
the double rate of two-tenths, because according to Abu
Hanifah, as well as his two disciples, Abu Yusuf and Mu-
hammad, the rate is doubled in regard to the dhimmi, as it
is doubled, for instance, when he passes the public collector
(rashir). According to Abu Hanifah, likewise, two-tenths

1 Durar, p. 176.

* For details concerning this and the preceding class, see classes 5
and 6 of tithe lands.

PRELIMINARY CONSIDERATIONS 373

is collected if the land is bought by a Moslem, instead of
by a dhimmi, or if the owner (the Taglabi) becomes a Mos-
lem, because the land was taxed at that rate before and the
charge continues as it was. According to Abu Yusuf,,
however, the rate is reduced to one-tenth, because the
doubling of the rate was due to the owner's being an infidel,
and when he is a Moslem the tax should be only one-tenth.
Muhammad in this connection agrees with Abu Hanifah,
for he believes in the continuation of the double rate, al-
though he does not believe in the doubling of the rate after
it had been one-tenth.1

If a non-Taglabi dhimmi buys a tithe land from a Mos-
lem, according to Abu Hanifah the land becomes khar&j
land and he pays kharaj on it. According to Abu Yusuf
he pays a double rate. According to Muhammad he pays
only a single rate. Malik claims that the dhimmi is forced
to sell it back to a Moslem. Al-Shafi'i, according to one
report, considers the sale of a tithe land to a dhimmi
as essentially null and void, but according to another re-
port, the land pays both tithe and khar&j. Finally,
Shank Ibn 'Abdallah, following the analogy of sawa'im
animals, said that the dhimmi pays for the land no tax
whatever. The argument of Malik is that the right of the
poor is attached to the land, but because the property of
an infidel is not fit for payment in discharge of this right,
the dhimmi is forced to sell it back to a Moslem. Muham-
mad's ground is that the charge attaching to the land does
not change with the status of the owner. Moreover, ac-
cording to one report from him, the single rate of tithe col-
lected from the dhimmi is disbursed like the proceeds of
zakat to the poor, because the right of the poor was already
attached to it. The reason of Abu Yusuf is that when the

1 Majma', pp. 177-8.

374 MOHAMMEDAN THEORIES OF FINANCE

infidel is subject to the same tax as the Moslem the rate to
him is doubled. The reason of Abu Hanifah, finally, is
that productive lands in Moslem states cannot remain un-
taxed, and that of the two taxes, the kharaj and the tithe,
the tithe is precluded here because it is a kind of sadaqah,
which the infidel may not pay, and that therefore he is sub-
ject to kharaj. If the land sold by the Moslem returns to
him or to another Moslem through the exercise of the right
of pre-emption or option (khiyar), or through the sale's
being imperfect (fasid), or by virtue of a judgment of dis-
solution on the ground of a defect ('ayb) in the land, it
becomes again a tithe land. If, however, the land is re-
turned to its former Moslem owner for a defect without a
judgment to that effect, or by reason of a dissolution of the
sale by the common consent of the two parties (iqalah)
then, because such a dissolution is a new sale as re-
gards third parties, the Moslem owner pays kharaj on it.1
If a Moslem buys a kharaj land from a dhimrrri,
the land still pays kharaj, according to the Hanifites.
Malik says that the land becomes tithe land because kharftj
involves humiliation and a Moslem is never humiliated either
when he acquires a land that is not subject to kharaj, or even
when, for instance, he buys land already paying kharaj.
Al-Sarakhsi says that Malik, in arriving at his con-
clusion, likened the kharaj of heads (kharaj al-ru'us) to
that of lands.2 But this is not true, not only because the
precedents of Ibn Mas'ud, al-Hasan Ibn 'Ali, and Abu Hu-

1 Durr, p. 143.

The difference between dissolution for defect by a judge and disso-
lution by the two parties lies in the fact that dissolution by the judge
in virtue of the general authority (wildyah 'dmmah) vested in him
amounts to an absolute dissolution (faskh) of the sale, as if the
Moslem seller had never sold his land. Consequently the latter con-
tinues to pay tithe on his land.

* Cf. Utnnt, vol. iv, p. 193; vol. vii, p. 325.

PRELIMINARY CONSIDERATIONS

375

rayrah, who paid kharaj on lands owned by them in the
Sawad, point to the conclusion that the kharaj must be con-
tinued on the land with respect to its new Moslem owner,
but also because the humiliation in paying kharaj exists
only when the kharaj is imposed on a land for the first time,
but not when it is continued on a land that already was
paying it. Just as it is not an humiliation to continue in
the status of slavery after conversion to Islam, although it
is humiliating to a person to be reduced to slavery after
having become a Moslem. As regards the hadlth invoked
by certain opponents to the effect that the Prophet referring
to instruments of agriculture said : " These have not en-
tered the house of a people but that they have become de-
graded ", the meaning is only that if Moslems occupy them-
selves with agriculture, follow the tails of oxen, and so be-
come sedentary and abandon the holy war, their enemies
will return to the charge upon them and so humiliate them ;
it by no means signifies that the payment of kharaj is humil-
iating. The kharaj of heads, however, is different because
it is humiliating whether assessed in the first place or con-
tinued, and therefore if a person paying this kharaj be-
comes a Moslem he ceases to pay it. Al-Sarakhsi adds that
all this is based on the customs of the people.1

Later doctors 2 distinguished, besides tithe and kharaj
lands, a third class of lands called amiriyyah (also tnamla-
kat) lands. These are lands conquered by force or gained by
treaty which were not left in the ownership of their former
proprietors but were made the property of the public treasury
( bayt-d-mal) . Their proprietors therefore were reduced to
mere tenants (mutasarrif) and paid on the produce of the

1 Mabstit, part iii, p. 5 ; cf. part x, p. 83.

3 Ifajtna', p. 513. For details, see Belin, Padel, Gatteschi, and Husnt
(pp. 19-20).

376 MOHAMMEDAN THEORIES OF FINANCE

land a proportional kharaj commonly known as tithe ('ushr).
The tenants do not have the right to sell, or make gift of,
or constitute as waqfs, their lands unless so permitted by
the sultan. Furthermore, if they allow the lands to lie idle
for three years they forfeit their rights of tenancy, and the
lands are leased again upon repayment of their value. For-
merly the right of inheritance was restricted to the male
children of the tenant only, his daughters and paternal
brothers enjoying only a right of preference to acquire the
tenancy rights by payment of the land's value. Later the
right of inheritance has by law been considerably extended.
The transfer of the tenancy rights in these lands is effected
only by permission of the sultan or his representative.1

1 This permission is a matter of form only, being never refused. The
legal status of these lands viewed from the standpoint of the shari'ah
is not well defined. Thus the concession of the tenancy rights in these
lands is not exactly in accordance with the shari'ah principles concern-
ing location (ijdrah) because the duration and the rental are not
known. Turkish faqihs consider it a case of txtrz-shan'ah or imper-
fect (fdsid) location. (Cf. Husni, pp. 24, 93.) Consequently, the
lump sum paid at the time of the concession, which is called tdpu, and
is equal to the value of the land, is looked upon as the anticipated part
(mu'ajjalah) of the future rentals, while the taxes collected yearly as
tithe or muqdta'ah, etc., are considered as the delayed (mu'ajjalah)
part of the same. In Turkey the so-called ijdreteynli waqfs present
another case in which the exigencies of the times have made a depar-
ture from accepted principles necessary.

CHAPTER VI
THE KHARAJ OR LAND-TAX *

THE word kharaj literally means the revenue derived
from a piece of land or a slave. Technically it denotes the
tax imposed on land, and by extension, it also means the
jizyah. According to the Path, the proper meaning of the
word kharaj is the kharaj of land, and therefore it may not
be construed to mean the kharaj of heads (ru'us), that is,
the jizyah, unless there is an indication to that effect.2

1 A/a/ma', p. 512; Mabsuf, part x, p. 79; Hiddyah, vol. v, p. 281 ; Jdml',
p. 330; Durr, p. 364; Durar, p. 177; 'Alantkiriyyah, vol. ii, p. 337; Babr,
vol. v, p. 115; Mawardi, p. 253. Unlike the Hanifites, the Malikites
and the Shafiites, with the exception of al-Mawardi, do not discuss the
khardj beyond summarily indicating the disbursement of its proceeds.
As regards the khardj levied on the strength of a treaty, it is easy to
explain why they do not discuss it, for the details of its administra-
tion in that case did not concern the central Moslem authorities, who
were interested in the proceeds only. On the other hand, as regards
the khardj levied on lands conquered by force and brought under im-
mediate Moslem administration, we saw that such lands were legally
considered as waqf property left in the possession of their original
owners by perpetual leases in return for the payment of rentals known
as khardj. Al-Shafi'i (Umm, vol. iii, p. 240) considers the nature of
their holdings in the lands as one of qabdlah, namely, an undertaking
to pay the khardj in return for their cultivation. Later Shafiites ( Tan-
blh, p. 300; Wajlz, vol. ii, p. 201 ; Afugni, vol. iv, p. 217; cf. Mawardi,
P- 303), on the other hand, consider it a case of perpetual lease (ijdrah
tnu'abbadah) , the khardj levied being a rental pure and simple. Ap-
parently the theory is that such lands are governed by the principles
of location (ijdrah} in general. Probably these facts account for the
silence of the two schools on this subject.

* Tec h. Diet., p. 409.

377

378 MOHAMMEDAN THEORIES OF FINANCE

The kharaj is levied only on the lands which come under
the description of kharaj lands, as explained in the last sec-
tion, and is of two kinds, the proportional kharaj (kharaj
muqasamah) and the fixed kharaj (kharaj wazifah or mu-
wassaf).1

The Proportional Kharaj consists in a proportion of the
produce of the ground, like one-half, one-third, one-fourth,
or one-fifth of the same. The Kharaj wazlfah, on the con-
trary, is a fixed charge on the ground, at so much of natural
produce or money per unit area or per tree.

The kharaj is levied on land irrespective of whether the
owner is a minor or adult, free or slave (mukatab), man or
woman, Moslem or infidel. Consequently if the dhimmi
owner of the land is converted to Islam, or if he sells his
land to a Moslem, the land is still subject to kharaj. How-
ever, Malik said that in such case the kharaj is remitted
exactly as the jizyah is remitted.

In the case of the fixed kharaj the rates imposed by the
calif Omar on the lands of Sawad in 'Iraq constitute the

1 Max Van Berchem (p. 53), inferring from al-Baladhuri's use of the
word muqdta'ah, distinguishes a third kind of khardj, the kharaj
muqata'ah. He means by it the khardj paid as a lump sum by certain
tributary provinces, especially such of them as were on the border of
the Moslem empire and had been able to preserve their autonomy. On
the other hand, according to the Persian commentary of al-Mawardi's
al-Ahkdm al-Sultdniyyah (Mawardi, pp. 33 et seq. of the notes) the
word muqdta'ah denotes the lump sum agreed upon to be paid yearly
to the state by individuals in consideration of (public) lands made over
to them by the state. The commentary adds that this procedure was
followed as regards waste lands which needed development or villages
and estates which needed improvement. The ' Alamkiriyyah (vol. ii,
p. 344) seems to use the word in this second sense when it says that
the imam may give away, in the form of muqdta'ah, khardj lands aban-
doned by their owners. The standard books on fiqh do not discuss
either one of these two meanings of muqdta'ah. The only reference
to it which I have come across is in the Jdmi' (p. 331) to the effect
that the khardj wazlfah is also called khardj muqdta'ah. For definitions
of terms pertaining to tax administration, see Mafdtlh (pp. 58-62.)

THE KHARAJ OR LAND-TAX 379

lawful rates and may not be augmented. These rates were
collected from every land fit for cultivation and accessible
to water, at the rate of one sa' of barley or wheat and one
dirham from every jarib of barley or wheat, and according
to al-Shafi'i, from the wheat four, and from the barley two
dirhams; and from every jarib of trefoil (ratbah) five dir-
hams, and according to al-Shafi'i six ; and from every jarib
of closely planted trees (karm), vines and palms ten, and
according to al-Shafi'i eight dirhams, but according to al-
Mawardi, from the trees ten and the palms eight dir-
hams, and the sugar-cane six dirhams.1 The above taxes
concerning trees applied only in case they were closely
planted in such a way that cultivation of the intervening
space was impossible, for isolated trees growing in cultivated
fields were exempt from tax, for the land was then taxed
as a cultivated land.2

In other than the above cases, namely, in cases concern-
ing which there is no precedent of the calif Omar, for in-
stance, in saffron or in gardens (bust&n),3 the kharaj is
assessed according to the tax-bearing capacity (taqah) of
the lands, and as the limit of tax-bearing capacity (gay at
al-tOqati) has been fixed by Hanifite doctors at half of the
entire produce, in no case may the rate exceed half the entire
produce, whether or not the rates were fixed in accordance

1 Other variants of the above numbers, as found in Abu Yusuf, al-
Mawardi, and al-Baladhuri, are for palms five, vines eight, meadows and
cotton plantations five, and for sesame five dirhams. According to one
report, palms were taxed on the basis of feet, as under the Sassanides,
and according to another report, palms were exempt from tax. How-
ever, this last report applied to isolated palm trees found in cultivated
fields, which were exempt from tax already under the Sassanides (Ber-
chem, p. 50, fn. i.)

1 Fa/A, vol. v, p. 282, 1. 6.

* Bustdn here means any enclosure of trees sufficiently apart to allow
of cultivation in the intervening spaces. It is the opposite of karm.

380 MOHAMMEDAN THEORIES OF FINANCE

with the precedent of Omar and whether the kharaj is fixed
or proportional. This is because Omar himself in assessing
the rates above mentioned took into consideration the tax-
bearing capacity of the land.

If then a land cannot stand the rate of kharaj imposed
upon it, the rate may be reduced to what it can stand, but
it is not allowed in any case to increase the rates imposed
by Omar or, for that matter, by another imam, in accord-
ance with the rates imposed by Omar, even if the land can
stand a higher rate. According to the Durr* the kharaj
may in no case fall short of one-fifth of the entire produce,
as it may not exceed one-half of it. If, however, a piece
of land is assessed for the first time, according to Abu
Hanifah and Abu Yusuf , it is still unlawful to assess higher
rates than those assessed by Omar, because Omar said to
his agents 'Uthman and Hudhayfah who had assessed the
kharaj of Sawad : " Perhaps you assessed the land with a
rate which it cannot stand?", and they said: " No, on the
contrary, we have assessed it with a rate which it can stand,
but if we had assessed a higher rate the land could still
stand it." These words indicate that the rate may be re-
duced if the land cannot stand it, but that it may not be in-
creased even if it can stand it, for Omar, although informed
that the land could stand more, did not order an increase of
rate. According to Muhammad Ibn al-Hasan, however,
higher rates may be assessed, since the rates are determined
on the basis of the tax-bearing capacity of the land.2

According to al-Mawardi,3 if the crop is one on which
there is no legal prescription (nass), it pays the rate pre-
scribed in the shart'ah for the crop that most resembles it in
appearance and profits.

1 P. 365. J Hiddyah, vol. v, p. 283.

8 P. 262.

THE KHARAJ OR LAND-TAX 381

Al-Mawardi * discusses as follows the factors which de-
termine the tax-bearing capacity (taqah) of land. The
person who assesses the kharaj on a piece of land should
consider the capacity of land, which varies according to
three factors, each factor affecting the amount of kliardj
more or less. One of these factors pertaining to the land
itself is the quality of the land by virtue of which the crop
grown on it is rich, or the defect which causes the produce
to be small. The second factor relates to the kind of crop,
since grains and fruits vary in price, some fetching a higher
price than the others, and the kharaj must therefore be
assessed accordingly. The third factor pertains to the
method of irrigation, for the crop that has been irrigated
with water carried on the back of beasts or raised by a water-
wheel, cannot stand the same rate of kliardj which could be
charged on land watered by running water or rain.

The irrigation of crops and trees may be effected in four
ways: Artificial irrigation without the use of any in-
strument, that is, by means of running water derived from
springs and rivers, by turning their course to the field
to be watered. This way is by far the most profitable and
least expensive, inasmuch as the water is turned on when
needed, and turned off when enough of it has been used.

(2) Artificial irrigation by means of some instrument,
*• 9-y by water carried on the back of beasts, or by
buckets or waterwheels, this way being the most ex-
pensive, and the one that entails the greatest hardship.

(3) Natural irrigation by means of rain or snow or dew.

(4) Irrigation by means of the humidity of soil, or by water
concealed underground. In this case the crops and trees
are irrigated by means of their roots.

Irrigation by means of conduits falls under the first class
if the water used is running water, and under the second

1 P. 257 et seq.

3g2 MOHAMMEDAN THEORIES OF FINANCE

class if not so. Again, irrigation by water derived from
wells belongs in the second class if the water is carried on
the back of beasts, and in- the first if drawn (ustukhrija)
through conduits.

The assessor of kharaj, therefore, in estimating the
amount of tax to be assessed on a piece of land, should
take into consideration the above-named three factors,
namely, the quality of land, the kind of crop, and the
method of irrigation. In this way justice is attained, as
between the beneficiaries of the fa'y and the taxpayer, since
neither the latter is overburdened nor the former are
prejudiced.

Some have recognized a fourth factor, namely the dis-
tance of the land from cities and markets, because the price
increases or decreases according as this distance is shorter
or longer, but this concerns only the case in which kharaj
is paid in silver (i. e., specie), and does not apply to the
collection of the tax in grain (kind), whereas the three
factors above-mentioned apply equally in both cases.

When the kharaj has been fixed by reference to the above-
mentioned principles, it is assessed on the ground according
to the most profitable of the following three ways: It is
assessed on the area of the land, or on the area of the cul-
tivated portion of the land, or, finally, on the produce as a
definite proportion of the same. When the kharaj is as-
sessed on the area of the entire land the year used is the
lunar year, and if the kharaj is assessed on the cultivated
area, the year used is the solar year, but if the kharaj is
proportional, the tax is due when the crop is ripe and the
grain ready for consumption.

When any one of these three alternatives has been settled
upon, one is not allowed to change * it to another but it is

1 Cf. Babr, vol. v, p. 116.

THE KHARAJ OR LAND-TAX 383

continued for ever, and hence the tax may not be increased
or decreased so long as the land continues to remain the
same with respect to its irrigation and advantages (ma-
salih).

If, however, the land changes as to its method of irriga-
tion and its advantages, then there are two cases conceiv-
able : ( i ) The change is caused by an act of the landowner,
e. g., the productivity of the land is increased by means of
water diverted from a river or derived from the ground,
or on the contrary, it is decreased owing to negligence in
cultivation and defective methods. In this case the kharaj
is left as it is; not being increased for increased produc-
tivity, or diminished for decreased productivity. The
owner, however, is reproved, in order that he may cultivate
the land so that it may not go to waste. (2) The change
has occurred owing to no act of the owner, but by reason
of a natural contingency, either to the advantage or the dis-
advantage of the land: (a) When the change is to the dis-
advantage, c. g., when the valley subsides, or the river dries
up, if repair is possible, it is the duty of the imam to use
for this purpose the revenue appropriated for works of
public utility, namely, from the share of masGlih; and the
kharaj is remitted to the landowner for the time the land
has lain uncultivated. The Hanifite view is to the same
effect.1 If, however, repair is not possible; in case, for in-
stance, the land cannot be cultivated; the kharaj is defini-
tively remitted if the land cannot be utilized in some other
way, for instance, as a pasture or hunting ground. But if
it can be used for some other purpose, then the land pays
the rate of kharaj levied on similar lands, (b) When, on
the other hand, the change results to the advantage of the
land, e. g., when the river follows a new course and as a re-

1 Cf. 'Alamklriyyah, vol. ii, p. 345.

MOHAMMEDAN THEORIES OF FINANCE

suit, the land is irrigated in the future by running water in-
stead of by artificial means, if the change is not believed to be
permanent, the tax is not increased, but if the change is
believed to be permanent, then the imam increases the tax
or desists from so doing according as he hold one or the
other course to be in the best interests of both the land
owner and the beneficiaries of the tax.

If a piece of land cannot be cultivated every year, but
must be allowed to lie fallow every other year, this fact is
taken into account when the kharaj is first assessed, and one
of the following three methods is applied with a view to
reconciling the interests of both sides. Half of the regular
rate on the cultivated portion is collected on the entire field ;
or every two jaribs are counted as one single jarib in order
to allow for the uncultivated portion; or, finally, the full
rate is assessed on the cultivated portion only.1

According to the Hidayah,2 if a person without excuse
changes from a kind of crop that pays a high rate of kharaj
to one that pays a lower rate he still pays the higher rate,
because he is responsible for the decrease of the rate. The
Hidayah, however, does not recommend this view (la yufta
bihi) because it would give an excuse to tyrants to oppress
the Moslems by forcing them to cultivate crops which
require great pains.

If a person plants in his farmland vines or fruit-bearing
trees, he continues to pay on his land the kharaj of crops
until the new plants shall have borne fruit, and he then pays

1 There is in the text a statement to the effect that in such case " one-
half of the produce " is taken. This statement was omitted as inconsis-
tent with the previous sentence where it was said that "the whole of the
tax is assessed ". If the whole of the tax is only one-fifth, one cannot
evidently collect "half of the produce." The variants of the text in-
dicated at the bottom of the page confirm the suspicion that the text
at this point suffered corruption.

* Vol. v, p. 285.

THE KHARAJ OR LAND-TAX 385

ten dirhams per jarib, if the value of the fruits is twenty or
more dirhams ; and if their value is less than this, he pays
half of that value, provided it does not fall short of the
equivalent of one qajiz of grain and one dirliam, because
that is the least rate that a jarib of land pays when its cul-
tivation is possible.

The kharaj is due on land irrespective of whether or not
the owner cultivated the land, provided that he has been
able to do so, because the reason for klwraj is the produc-
tivity of land, and the owner by not cultivating his land,
notwithstanding that it was productive, has deprived the
beneficiaries of kharaj from their revenue.1 According to
Malik, the owner pays no kharaj if the land was not culti-
vated, whether or not he had an excuse for not cultivating
it.2 If the owner was unable to cultivate his land because
he lacked the means to do so, the imam is entitled to lease
the land to another farmer by way of muzara'ah? and col-
lect the tax from the owner's share of the produce, or to
lease the land to a tenant and collect it from the rental, or,
finally, to have the land cultivated at the expense of the pub-
lic treasury and collect the tax from the owner's share.
According to the ' Alamklriyyah* a similar course is fol-

1 Mabsiit, part x, p. 82.

1 Mawardi, p. 261.

5 Muzdra'ah is an agreement between the owner of a farm and a
farmer that the latter shall cultivate the farm in consideration of a
certain proportion of the produce. It is also called ntukhdbarah. The
term muzdra'ah applies to the cultivation of grains, while the terms
mu'dmalah and musdqdt are used with respect to trees. Mufldrabah is
the counterpart of the same idea with respect to trade, meaning a part-
nership between the principal (rabb al-mdl) who owns the stock and
the trader (mu^drib) who contributes the labor for a part of the
profits. If all the profit is to belong to the capital owner (mubd?) the
transaction is called bidd'ah, and the person who trades with it
mustabd?.

4 Vol. ii, p. 344.

386 MOHAMMEDAN THEORIES OF FINANCE

lowed if the owners abandon their lands, or if one of them
dies. However, according to a report from Abu Hanifah,
when the kharaj people abandon their lands the imam may
have them cultivated at public expense, or lease (muqata'ah)
them, the entire income belonging to the public. If none of
the above mentioned courses is possible, the imam sells the
land and collects the tax from the price, returning the
balance to the owner.1 Should the owner later again be able
to cultivate his land, it is returned to him unless, indeed it
has been sold.

According to al-Mawardi,2 if m the above-mentioned
case of neglect of cultivation the kharaj levied on the land
would differ with the kind of crop raised, only the
lowest of the possible rates is collected from the owner,
for if the latter, instead of entirely neglecting the cultiva-
tion, had only raised the crop subject to that lowest rate, he
would have been within his right.

According to the Path* there is a reliable report from
Abu Yusuf to the effect that when the owner is unable to
cultivate the land, the public treasury should advance him
as a loan the necessary funds.

According to al-Mawardi, * however, when the owner
lacks the means of cultivation, he is told either to lease his
land to another person or to forego his possession (yad) of
the land in order that it may be turned over to a person
who can cultivate it; for the land is not allowed to go to
waste even if its kharaj is paid, because it would then be-
come waste (mawat) land.

According to the Durr,5 all the above applies to the fixed
kharaj only, provided the owner is not prevented from cul-

1 Bahr, vol. v, p. 118.

2 Pp. 261-2. ' Vol. v, p. 285.
* P. 264. 5 P. 365.

THE KHARAJ OR LAND-TAX 387

tivating his land. For if he is so prevented or if the kharaj
is of the proportional kind, no kharaj is due on the land.

In the Bahr it is said that since the kharaj levied on the
lands of Egypt is in reality a rental, the cultivators (fal-
Idh) should not be obliged to pay the kharaj when they do
not cultivate the land and are not tenants thereof.1 Further-
more, it is unjust to oppress the farmers when they abandon
agriculture and settle in the cities, especially when they do
so in order to engage in the study of the sharfah.

With respect to the present land holders of Syria, Ibn
'Abidm2 remarks that, being mere cultivators of the land for
a part of the produce ( nut-sari') t they may not lease (I jar)
their holdings in consideration of a rental (ujrah) to be
collected by themselves from the lessees (nmsta'jir) over
and above what is already paid by the latter to the imam.
Consequently the above-mentioned practice of the cultivators
(mitsari') of the sultaniyyah (i. £., amiriyyah) and waqf
lands betokens their ignorance, and so " I have rendered
a fatwa to the effect that it is not lawful ". According
to the Tatarkhaniyyah, as quoted by Ibn 'Abidin, the so-
called al-aradi al-mamlakah (i. e., annriyyah), namely,
lands without owners, may be given away to people on con-
dition of payment of kharaj by them. This is lawful on
one of these two grounds : either the people in question be-
come like owners (iqdmah maqam al-mulldk fi l'-zirdfah wa
i'tff al-kharaj) so far as cultivation and the payment of
kharaj is concerned; or it is a case of lease (ijdrah) at a
rental equal to the kharaj, and in such case, the amount col-
lected from the lessees is kJiardj as regards the imam,
though it is rental as regards them. Ibn 'Abidin concludes
from this quotation that the cultivators of Syrian lands

1 Bahr, vol. v, p. 118.
1 Mwthah, vol. v, p. 114.

388 MOHAMMEDAN THEORIES OF FINANCE

should not pay the tithe (fushr), for if the tax already col-
lected from them is kharaj; it is a well-known principle that
the kharaj and the tithe are never levied on the same land ;
and if, on the other hand, it is rental, it is again well-known
that, according to Abu Hanifah, the tithe should be levied
on the lessor (mu'jir) — though according to his two dis-
ciples it is levied on the leaseholder — " however, what is
collected is not rental in every respect since it is kharaj as
regards the imam. Reflect on it."

If there is in a piece of land a thick wood with plenty of
game, no kharaj is paid on the land; but if the land is grow-
ing reeds or tamarisks or pinetrees or willows or other non-
fruit-bearing trees, the owner pays kharaj if he can clear
the ground and grow crops on it; otherwise he is exempt
from the tax. The same principle applies if, instead of trees,
there are salt deposits on the land.1

If a person owns a village situated on kharaj lands, he
pays no kharaj for the houses and dwellings of the village
whether or not he leases them. Likewise, if a person con-
verts part of his habitation situated in a Moslem city into a
field, he pays no kharaj on the field because the field is con-
sidered a dependency of the house and houses are exempt
from taxes; but if he turns the whole of his habitation into
a field, then he pays for it the kharaj, provided it is kharaj
land. On the other hand, if a person turns his kharaj land
into a habitation he pays kharaj for it.2 According to al-
Mawardi,3 such part of the land as is covered with build-
ings which are indispensable should be exempted from the
tax.4

1 'Alamkiriyyah, vol. ii, p. 345.
8 'Alamkiriyyah, vol. ii, p. 341.
1 P. 263.
4 Cf. Kharashi, p. 427.

THE KHARAJ OR LAND-TAX 389

The kharaj becomes due only once a year, even if the
land should grow during the year many crops, because the
calif Omar collected from the lands of the dhimmis only
once a year, and because lands in general grow only one
single crop during a year, and the law is rather concerned
with general cases than with exceptions.1 Of course this
applies to the fixed klwrcij only, as the proportional kharSj,
like tithe, is collected every time a crop has been grown.2

A land subject to kharaj does not also pay tithe under
any circumstances according to the Hanifite school, but the
other two schools allow the combination (ijtimtf) of the
two taxes.

The kharaj lapses if the entire crop has been destroyed
(istilam) as a result of unavoidable natural forces (afat),
such as the subsiding of the land, fire, extreme cold, etc.
If, however, the crop was destroyed in consequence of
avoidable agencies, such as wild birds, or if the crop is de-
stroyed after harvest, the tax is not remitted. Some say
that the tax is remitted only if the year is too far spent
to allow the farmer to cultivate again. According to
the Path this time has been fixed at three months. All the
above applies in case the entire crop has been destroyed,
for if only part of it has been destroyed the whole of the
tax is collected, if the remaining part is still sufficient for
the settlement of the tax twice over; however, only half
of the remaining part is collected, no matter how little,
if such part is less than the khar&j. According to the
'Alamklriyyah* the leading Hanifite doctors hold the view
that the proper thing to do in this last case is to deduct
from the remaining produce, before everything else, the

t, part x, p. 82.
*Majmo', p. 515; Jdmi', p. 330; Mawardi, p. 260.
8 VoL ii, p. 345-

390 MOHAMMEDAN THEORIES OF FINANCE

expenses of the farmer, and then proceed as explained. The
reason for the remission of the tax in case of destruction is
that the farmer has been stricken with adversity and deserves
assistance, since the opposite policy would result in his ex-
termination. Besides, one of the virtues for which the Per-
sian kings have been praised has been their policy, in case
of the destruction of the entire crop, of returning to the
owners (dihqan) from their treasuries their expenses of
cultivation; and therefore, if such expenses are not re-
turned, at least the kharaj must be remitted. Moreover,
when the entire crop has been destroyed, it has become ap-
parent that the possibility of deriving a benefit from the
land has been absent, but the kharaj is due only when such
possibility has existed.1

If the owner sells his land during the year, the kharaj is
paid by the buyer if cultivation is possible during the re-
maining part of the year; otherwise the kharaj is paid by
the seller. According to the Tatarkhaniyyah, this applies in
case the land was sold free of cultivation. For if a land
already under cultivation is sold with its crop before it has
as yet grown the kharaj is in every case paid by the buyer.
If, on the contrary, the crop has grown, it is the same as if
the land was sold free of cultivation. According to a report
from Muhammad Ibn al-Hasan, if a kharaj land is sold suc-
cessively from person to person so that the land has not been
in the possession of any one person for at least three months,
no one of the buyers is subject to payment of kharaj. In
deciding whether there was enough time left for cultivating,
the time necessary for the cultivation, according to some
doctors, of wheat or barley, and according to others, of any
crop, is taken as the basis, but according to the Waqi'at of
al-Natifi, this time is fixed at three months.

1 Mabsat, part x, p. 83.

THE KHARAJ OR LAND-TAX

According to al-Ramli,1 the proportional kharaj is like
the fixed kharaj as regards its appropriation, but like tithe
in all other respects: namely, in that every produce which
may be subject to tithe may be also subject to the propor-
tional kharaj, and that it is like tithe a charge on the produce
and hence due every time there is a produce. It is claimed,
according to the Jami', that the proportional kharaj is not
due if the land has been allowed to lie idle, even if cultiva-
tion was possible; that although some hold the contrary,
the farmer may consume a reasonable part of the produce
before the tax has been paid, the fixed kharaj being like the
proportional in this respect; that the tax is remitted if the
product is destroyed, even though after the harvest ; that in-
debtedness does not exempt from its payment; finally, that
the payment of the tax need not be made as soon as the tax
falls due, subject, however to the same divergence of view
as tithe.

The farmer may bestow alms from his crop before the
kharaj has been demanded by the sultan, but not after.
If the sultan makes to the kharaj payer a gift of his kharaj
debt, it is lawful according to Abu Yusuf, and unlawful
according to Muhammad Ibn al-Hasan. The view of Abu
Yusuf is the one generally recommended, provided the
kharaj payer is one of the beneficiaries of kharaj revenue.
In tithe, however, according to all, the amount constituting
the present must be made good to the sadaqah treasury from
the kharaj treasury unless the tithe payer was poor. It is
allowed to collect the entire amount of the fixed kharaj in
specie, since the object in view is that the tax should equal
the capacity of the land. As in proportional kharaj, a
charge of debt does not exempt the land from the kharaj.
Finally, a debt of kharaj of either kind does not lapse upon

1 Bahr, Minhah, vol. v, p. 1 16.

392 MOHAMMEDAN THEORIES OF FINANCE

the death of the land owner, but is collected from his estate.
However, according to the Mabsut,1 if the owner of the
kharaj land dies before the collection of the kharaj, the latter
lapses and is not collected from the estate. This is because,
like the kharaj of heads, the kharaj of lands also has the
meaning of humiliation. Moreover, it cannot be collected
from the heirs, for although they own the land, they could
not use it before the death of the deceased.

According to al-Mawardi,2 if the kharaj land is leased
with or without a rental, the tax is collected from the land
owner, and not from the lease holder; but Abu Hanifah
holds that the tax is paid by the lease holder if the lease was
made without a rental, and by the owner in the other case.
Abu Hanifah's two disciples hold the same view as al-Ma-
wardi.*

According to Abu Hanifah,4 in the collection of kharaj
the taxpayers must be treated with consideration and justice,
and the kharaj must be collected in instalments, namely,
from each crop must be taken its proportionate share of the
year's kharaj. For instance, if a piece of land grows two
crops, when the first crop is taxed, only half of the year's
kharaj is collected by the collector if he thinks that the sec-
ond crop will be as good as the first ; and so on for the rest.

If one is unable to pay his kharaj debt 6 he is allowed to
delay its payment until his finances improve. Abu Hani-
fah says that the kharaj is due only when the landowner
can pay it, and that it lapses when he is unable to pay it. If,
however, a person delays the payment of his kharaj debt,

'Part iii, p. 50.

* P. 263; cf. Umm, vol. iii, p. 240.

8 'Alamkiriyyah, vol. ii, p. 340.

4 'Alamkiriyyah, vol. ii, pp. 342, 346.

8 Mawardi, p. 264.

THE KHARAJ OR LAND-TAX 393

notwithstanding his ability to pay it, he is put in prison
for it, unless there is discovered some of his property. In
such case the property is sold and the debt settled out of
the sale price, just as this is done for the recovery of ordi-
nary claims. If the debtor has no other property than the
kharaj land, the imam, if he sees fit, sells enough of the
land to settle the debt, or he leases the land and settles the
debt from the rental and returns the rest to the land owner.
According to the ' Alamkiriyyah,1 the sultan may keep
under control (hobs) the produce of the land until the
kharaj is collected.

According to a report from Muhammad Ibn al-Hasan,3
if one pays in advance ('ajjala) 'the kharaj of his land for
one or two years, it is lawful. If subsequently the land is
flooded with water, the kharaj is returned to the landowner
if it remained intact. According to the Muntaqa, the kharaj
is returned, or reckoned as payment on account of the
kharaj of the next year.

If the kharaj has been collected once by rebels and schis-
matics it is not collected again by the imam when he re-
covers control over the taxpayers, for taxation is based on
protection and in this instance the imam has evidently failed
to protect them.3 The view expressed by al-Mawardi * is
practically to the same effect.

In settling the kharaj in specie,6 only gold and silver
coins which are not mixed with baser metals (gishsh) are
to be accepted. Again, only those of these coins bearing
the impression of the sultan are accepted, because they

1 Vol. ii, p. 346.

1 Ibid.

•Ma/ma', p. 167; Hiddyah, p. 150; Kasani, p. 36.

4 P. 225.

1 Mawardi, pp. 269-72.

394 MOHAMMEDAN THEORIES OF FINANCE

alone are reliable and secure from counterfeiting or other
source of loss. Consequently, ingots of gold and silver are
not accepted, because they are not reliable and may not be
depended upon unless tested by melting. If more than one
impressed coin of the same degree of purity of metal but of
different value be current, and the tax collector demands
payment of the tax in terms of the most highly valued of
those coins, the tax is settled in its terms, in case such coin
is one that has been struck by the sultan of the time, be-
cause the contrary course would involve disloyalty. If,
however, the coin has been struck by another sultan, then
the tax is still settled in it, if the previous landowner has
paid in the same coin; otherwise it is tyranny to insist on
that particular coin.

The dirhams * and dinars are not accepted in payment of
kharaj if their silver or gold has been reduced (maksur).2

As regards the measure used in the kharaj,* if it is the
proportional khar&j, it makes no difference what measure
is used. If, however, the kharaj is of the fixed kind, ac-
cording to the 'Alamkiriyyah, the measure used in this con-

1 The dirham used in connection with khardj is the same as is used
in sakdt.

3 The doctors disagree as to the propriety of reducing the metal of
the coins. Malik and most of the Medina doctors declare such a
practice to be abominable. The Prophet is said to have forbidden the
reduction of the size of the coin (sikkah). This hadlth is taken
by some to mean a prohibition of turning the coins into bullion, by
others, of turning them into plate, by still others, of trimming off the
edges of coins with scissors, because in the beginning of Islam coins
were counted by tale. Abu Hanifah and the doctors of 'Iraq, on the
other hand, hold the view that such a practice is not abominable. Al-
Shafi'i says that the practice is not abominable if the reduction was
required by necessity, otherwise it is a wanton act. Finally Ahmad
Ibn Hanbal approves of it only with respect to coins on which the
name of God was not impressed.

s Mawardi, p. 272; 'Alamkiriyyah, vol. ii, p. 339; Foth, vol. v, p. 281;
Mafatih, pp. 14-5, 66-8.

THE KHARAJ OR LAND-TAX 395

nection is the sa' which is eight ritls. According to al-
Mawardi, when a district is assessed with kharaj for the first
time the measure of that district is taken as the basis.

Finally, as regards the measure used for measuring the
land,1 according to the 'Alamklriyyah, the jarib is sixty by
sixty cubits, in terms of the cubit of al-Malik, which is seven
qabdahs ; 3 namely, one qabdah longer than the common
cubit, which is six qabdalis. According to the Kafi as quoted
in the Path, in measuring the land in every district the meas-
ure commonly used there is taken as the basis.

If the tax collector and the land owner disagree about
the status of the land,8 the former claiming that the land is
kharaj land, and the latter contending that it is tithe land,
in case the contention of either side may be true, the claim
of the land owner is given preference; but if he is suspected
he must swear as to the truth of his contention in order to
clear up the doubt. In such cases of dispute, it may be re-
ferred to the public registers (dvwan) if their reliability is
well-known and the registrars may be relied upon. Dis-
putes of this kind, however, are rare, occurring only on the
borders of territories subject to one or the other of the two
taxes.

If the landowner claims that he paid the kharaj, his
claim is not observed although he is believed if he makes
a similar statement with respect to the tithe. In such case
it may be referred, in accordance with custom, to the public
registers concerning the kharaj, if they are reliable.

Like the zakat collectors, the kharaj collectors receive
their pay (risq) out of the kharaj proceeds, and this is also
true of the pay of the surveyor (massah), but there is dis-

1 For details on kinds of measures, see Mawardi, p. 265.
1 Qabdah is the measure of the fist, t. e., about 4 fingerbreadths, or
nearly 6*4 inches.
1 Mawardi, p. 263.

396 MOHAMMEDAN THEORIES OF FINANCE

agreement as regards the wages (ujrah) of the distributor
(qassam)* According to al-Shafi'i, his wage is taken out
of the proceeds of the tithe or kharaj collected. Abu
Hanifah, on the other hand, says that the wage is paid in an
equitable manner out of the produce before the collection
of the tax. Sufyan al-Thawri says that such wages are
paid, in the case of kharaj, by the sultan and in the case of
tithe, by the landowner, and finally Malik holds that wages
relating to tithe are paid by the tithe payer and those relat-
ing to kharaj are paid half and half by the taxpayer and
the sultan.

The officials of the fa'y revenue,2 such as the kharaj and
the jisyak, besides being reliable and active, are required to
possess certain other qualities according to the extent of
jurisdiction and power with which they are invested: (i)
If they are charged with the assessment and distribution of
the fa'y revenue, they must possess these four qualities:
they must be freemen, Moslems, mujtahids, and conversant
with arithmetic and surveying. (2) If they have full au-
thority over the collection of tax rates which have already
been assessed, they must be freemen, Moslems, and con-
versant with arithmetic and surveying, but they need not
be mujtahids •; since their duty is only to collect what has
already been assessed. (3) If they have limited authority
over a specified part of the ftfy revenue, then it depends
on the duties they have been charged with. If their duties
are such that they need to appoint a substitute, they must
be Moslems, freemen, and conversant with arithmetic and
surveying to the degree required, but they may not be

1 Qassdm (distributor) means the official who measures off the tithe
or the proportional tax from the entire produce which after harvest
was deposited in the barns (bayddir). The massdh (surveyor), on the
other hand, is the official who measures the land in order to deter-
mine the amount of the khardj. (Cf. Berchem, p. 72, fn. 4.)

3 Mawardi, p. 224 ; also p. 264.

THE KHARAJ OR LAND-TAX 397

dhimmis or slaves, because these two are not qualified to
exercise authority (wilayah). On the contrary, if they do
not need to appoint substitutes, they may be slaves, since
they are in this case like messengers (rasul) sent on an
errand. As for their being dhimmis, it depends on the
taxes they are to collect. If they are to collect taxes from
dhimmis, such as the jizyah, and the tolls ('ushr) levied on
the dhimmi traders, they may be dhimmis. If, however,
they are to collect taxes from Moslems, such as the kharaj
of lands found in the possession (yad) of Moslems, opin-
ion varies.

If the person named collector is not qualified to exercise
the authority vested in him and yet collects the tax, the
taxpayer is released from his debt if the collector was not
forbidden from collecting the taxes, because the collector
was authorized to collect the tax from him, although his
authority was imperfect (fdsid) and he was acting as a
messenger. The difference between the collector's author-
ity being valid (sahih) and imperfect (fdsid) is that in
the first case he may force the taxpayer to pay the tax, and
in the second he may not. If the authority of the collector
is not only imperfect, but he is also forbidden to collect,
he may not then force the taxpayers to pay the taxes, or
even collect the same. Should the taxpayers pay the tax
to the collector, though knowing that he was forbidden
to collect taxes, they are not released from their tax dues;
but if they did not know about it, then, according to one
view of the matter, they are released, but according to an-
other view, they are not. The same divergence of view
exists concerning agents (wakll).

Unike the sakat official, the fa'y official may not distribute
the ftfy revenue he has collected without permission, be-
cause while the beneficiaries of zakat have been determined
by revealed texts, those of the fafy are determined by the
imam.

CHAPTER VII
THE JIZYAH OR POLL TAX a

THE word jizyah is derived from jaza meaning compen-
sation, requital for good or evil. This tax owes its name
to the fact that it is taken from the dhimmis as a punish-
ment for their unbelief in order to humiliate them or, it
may be, by way of mercy, as a price for the protection
given them by the Moslems.2

The collection of the jizyah is based on the divine
words : 3 " Make war upon such of those to whom a Scrip-
ture has been given, as do not believe in God, nor in the last
day . . . until they pay by their hands the jizyah in order
to be humiliated." The dhimmis by paying the jizyah be-
come entitled to two rights : security from molestation and
protection. By virtue of the first right they become safe
(amiri) and of the second, proteges (mcthrOs).4

According to the Hanifite doctors, the tax is called jiz-
yah because it is paid by the dhimmis as a compensation
(jaza) for being spared from death; since by the payment
of the jizyah the non-Moslems purchase their lives and
may no longer be killed. Al-Sarakhsi, in this connection
remarks that the infidel who lives in the Moslem state is

lMajma', p. 515; Hiddyah, vol. v, p. 288; Yusuf, p. 69; Mawardi, p.
245; Minhdj, vol. iii, p. 275; Mugni, vol. iv, p. 224; Angari, vol. iv, p.
210; Dardir, p. 203; Kharashi, p. 441.

2 Mawardi, p. 246; cf. Kharashi, p. 441.

s Koran, chap. 9, verse 29.

4 Mawardi, p. 247.
398

THE JIZYAH OR POLL TAX 399

subjected to the payment of jizyah for his humiliation and
punishment so long as he persists in his unbelief, and in order
to impress him with the degradation of unbelief and the
power of Islam. According to him, the jizyah is taken from
the dhimmis in lieu of the assistance which they would be
liable to give if they had not persisted in their unbelief, be-
cause, living as they do in the Moslem state, they must be
ready to defend it. However, since they do not embrace
Islam, they are not fit for such assistance in person because
they would be favorably inclined towards the enemy. Con-
sequently, instead of personal service they are required to
give part of their wealth, which is spent on the Moslem
soldiers who defend the state ; and exactly as the poor Mos-
lems take part in the war as footmen, and the rich as horse-
men, so the amount of the monetary equivalent collected
from the dhimmis varies according to their means. Some
say that the jizyah levied on the dhimmis is a rental for
residing in the Moslem state, but the former view is prefer-
able; for if the latter view were true, women and children
also would be liable to pay the tax, which they are not, be-
cause they are not liable for the defence of the country.1

The jizyah is levied only on those who may be admitted
into the status of the dhimmi, namely, Christians, Jews,
both of whom possess a Scripture, and the idolaters
and fireworshipers. According to the Malikites,2 except-
ing apostates, all persons who may be made slaves, that
is, all unbelievers (kafir), even including the Quraysh, may
be admitted into the status of dhimmi. According to al-
Shafi'i, the jizyah may be accepted only from Christians,
Jews and fireworshipers, but not from idolaters, inasmuch
as the above-mentioned verse refers only to the first two

1 Mabsiit, part x, p. 8.
1 Kharashi. p. 442.

400 MOHAMMEDAN THEORIES OF FINANCE

classes, and the Prophet extended its scope to the firewor-
shipers also; but the idolaters are left out entirely. The
Hanifites argue that since the idolaters may be made slaves
it should also be allowed to accept the jizyah from them,
but they admit that this is true only of the idolaters who
are not Arabs. The Arab idolaters may not pay the jizyah,
for the Prophet was sent from among them and the mir-
acles were performed before their eyes. So their persist-
ence in unbelief is of the worst type. By Arabs here are
meant the original Arab tribes that are idolaters, and not
the Jews and Christians settled among the Arabs or Arabs
who have been converted to the Hebrew or Christian re-
ligion. The jizyah is likewise not accepted from renegades,
for these " have turned to unbelief after having once wit-
nessed the beauties of Islam ". The Arab idolaters and the
renegades have to accept either Islam or the sword, but
their wives and children are spared and made slaves.

The jizyah is of two kinds :

(i) The jizyah imposed by agreement and treaty, the
amount of which has been fixed by the terms of the agree-
ment and may not be later changed.1 For example, the Pro-
phet arranged with the people of Najran that they should pay
yearly in two instalments 2,000 hidlahs (a dress of two
pieces), each hullah being worth 40 dirhams. According to
Abu Yusuf , this yearly payment is for both their persons and
their lands, and the part paid for the persons applies only to
the non-Moslem part of the population of Najran, while the
part paid for the lands is collected from every piece of
land, even when sold to a Moslem. According to the 1AI-
amkiriyyah? the imam may require the payment of a lump
sum of money or goods without specifying the part to be

1 Path, vol. v, p. 288.
9 Vol. ii, p. 350.

THE JIZYAH OR POLL TAX 401

paid by persons (jam&jim) and by lands, or he may so
specify. In the former case, the total sum is justly appor-
tioned among the persons and the lands, the part allotted to
the persons being jizyah and the other kharaj. Both of
them are distributed among the individual taxpayers ac-
cording to the principles governing the jizyah and kharaj
in general. If the number of heads decreases or entirely
disappears by conversion to Islam or death or otherwise,
their share of the tribute is reduced or entirely removed and
charged to the lands if the latter can stand it; otherwise it
lapses. Should the heads later increase, they gradually re-
sume payment of their full share. A similar course is fol-
lowed if the lands cannot bear their share of the tribute.
In the case of lands, however, should they be entirely de-
stroyed, their share lapses. If, on the contrary, the shares
of the lands and the persons were specified by the imam,
then neither bears the share of the other, should the latter
be unable themselves to pay it, but such share lapses until
they are again able to pay. Should they become Moslems,
the part assessed on the persons lapses, but the fact of con-
version has no effect on the part assessed on the lands.
Should the imam follow a third course and arrange for a
tribute on the persons or the lands alone, such an agreement
is null and void (la yasihJm), the sum arranged being distri-
buted as noted above between the persons and the lands.1

The Shafiites2 agree with the Hanifites that the jizyah
agreed upon in a treaty may not later be changed, but they
hold that the rate of the jizyah per individual as provided
for in the agreement should never fall short of the mini-
mum rate of one dinar. When by such an agreement the

1 For the Shafiite and Malikite views, see supra, pp. 369-372.

1 Mawardi, pp. 249, 250 ; Minhdj, vol. iii, pp. 279, 281 ; Wajiz, vol. ii,
p. 200; An§ari, vol. iv, p. 216; Path al-Qarib, p. 624; Umm, vol. iv, p.
IOI.

402 MOHAMMEDAN THEORIES OF FINANCE

infidels retain the ownership of their city or their village,
it is recommended to the imam to obtain the insertion of a
provision for the entertainment of Moslem travelers who
may stop in that city or village. In such case the total num-
ber of the days of entertainment during the year, and the
number of guests and horses, as well as the length of time
individual guests are to be entertained, are specified. As
in the case of jizyah, the individual assignments are varied
according to the wealth of the entertainers. When the in-
dividual assignments have not been specified in the agree-
ment, then the people of the city or village themselves make
the assignments among themselves. The amount and kind
of food to be served the travelers and the quantity of bar-
ley to be given their animals are also indicated. The super-
fluous residences and the churches where the Moslems are
to be lodged are also mentioned, in this respect the lodg-
ings of the poor infidels being equally liable. The sojourn
of the same individual may not exceed three days, neither
may he require medical service nor baths. Furthermore,
the infidels are never forced out of their houses in order
to make room for Moslem travelers. Some Shafiites say
that this burden of entertainment is in lieu of the mini-
mum rate of one dinar in specie, and that consequently it
may be converted to its monetary equivalent and collected
in specie. Others hold that it is independent of, and over
and above, the minimum rate of one dinar, and that conse-
quently the latter may not be reduced to allow for this bur-
den in kind, and that the infidels may not be forced to pay
it in specie. If it is converted to specie it becomes a part
of the fa'y and may be disbursed to the fa'y beneficiaries
only, although before its conversion any Moslem is entitled
to entertainment.

Like the Hanifites, the Malikites give power to the imam
to settle the jizyah at any figure. If the amount was

THE JIZYAH OR POLL TAX 403

not indicated in the treaty, it is collected at the same rates
as obtain in regard to dhimmis who do not enjoy any treaty
rights.1

(2) The jizyah imposed by the imam upon the popula-
tion of a district conquered by force of arms.2 The yearly
rate for the rich is forty-eight dirhams, i. e., four dirhams
per month, for the middle class half of this sum, and for
the poor who can earn their living, one-fourth of this sum.
The above is based on the precedents of the califs Omar,
'Uthman and 'AH, the other Companions having approved
of their action. In other words, it is based on ijma'. There
is no Zahir-al-riwayah report concerning the meaning of
the terms rich, middle-class and poor, but in the commen-
tary of al-Tahawi it is stated that the person who owns
10,000 dirhams and upwards is rich, the person owning
from 200 upwards is middle class, and finally the person
owning less than that is poor. Some say that the person
who needs to work in order to earn a living is poor, the per-
son who, though having possessions, works, middle class,
and the person who owns enough to afford to be idle, rich.
Still others say that the person who has not enough is
poor; the person who has enough food for his family and
himself, middle class; and the person who has more, rich.
The author of the Ikhtiydr believes that this point should
be settled by the imam on the basis of the particular condi-
tions prevailing in each locality.

Al-Shafi'i has expressed the opinion that the minimum
rate of jizyah is one dinar or twelve dirhams upon
every adult, rich or poor, the maximum rate being
fixed by the imam according to his judgment. Ac-
cording to the Minhaj,2 the imam should bargain

1 Ibn Rushd., M., p. 279 ; Dardir, p. 204. * Cf. Kharashi, p. 443.
1 Vol. iii, p. 279 ; Wajls, vol. ii, p. 200 ; Mugni, vol. iv, p. 229.

404 MOHAMMEDAN THEORIES OF FINANCE

(mumakasah) until he obtains the rate of four dinars for
the rich and two for the middle class. Some say that this
bargain may be made only at the time of the agreement,
since afterwards the agreement may no longer be changed.
Still others hold that it may be made at the time of the
agreement, or afterwards, at the time of collection as well.
According to Malik, both the minimum and the maxi-
mum are fixed by the imam? However, according to
Khalll,2 the rate of the jizyah is fixed at four dinars or
forty dirhams, with necessary reductions to allow for
poverty.

According to both the Shafiites and the Malikites,3
if the infidels refuse to pay as jizyah more than the mini-
mum of one dinar, the imam may not fight them in order to
obtain a higher rate, but is obliged to accept that rate.
According to Malik, the dinar is valued at ten dirhams. Ac-
cording to most of the Shafiites the dinar is valued at its
current market value. According to the Hanifites, however,
although the dinar in general is valued at ten dirhams, in
the case of jizyah, following the precedent of Omar, it is
valued at twelve.4

The jizyah is not imposed upon the children, insane, and
the imbecile old people; in other words, persons who do not
possess legal responsibility; because they are not fit for as-
sistance in the defence of the state. This is also true of
senile old people, and of the blind and cripples. Abu Yusuf
says that the blind and the cripples who have property are
subject to the tax, because, although they cannot assist in
person, they may do so by their wealth, and because such

1 Mawardi, p. 249.

1 Kharashi, p. 443.

1 Wajiz, p. 200 ; Ibn Rushd, M. ., p. 279.

4 Path, vol. v, p. 289.

THE JIZYAH OR POLL TAX 405

persons, when they have had a voice in government, are
liable to death in time of war. Likewise, the poor who
are not engaged in business are exempt from the tax. Also
monks who are retired from the world, even if they can
work, are not subject to it, because they are not liable to
death in time of war. According to Abu Hanifah and Abu
Yusuf, monks pay the jizyah if they can work. Slaves of
every description (qinn, mudabbar, umm walad, ummah,
or mukatab) do not pay the jizyah, nor is the jizyah
paid by their masters, who on their account already pay a
higher rate of jizyah than they would otherwise do. The sick
as well are free from the tax. According to al-Shafi'i,1 the
jizyah is levied on every male dhimmi who is of age and
sane of mind and of free status ; the priests, the senile old
people, the paralytics, etc., included. The poor who are
unable to engage in business are to be ousted from the Mos-
lem country according to one view; in another view, they
are exempted from the jizyah; however, in a third view they
are subject to it like others.

According to the Ikhtiyar, if the cause of exemption dis-
appears in the case of the above-mentioned people, except-
ing the poor, before the tax was yet imposed on them, they
become subject to it; but if the cause disappears after the
tax was imposed for that year, they are exempt from it for
that year, because the cause of exemption is considered
with reference to the time of the imposition of the tax.

According to Abu Hanifah, the jizyah becomes due at
the beginning of the year, but is collected at the end of the
year, two or three days before it runs out ; Abu Yusuf main-
tains that it should be collected by instalments every two
months and Muhammad Ibn al-Hasan, every month, in
order that the tax may become more onerous for the tax-

1 Umm, vol. iv, pp. 98, 101 ; cf. Wajlz, vol. ii, p. 198.

406 MOHAMMEDAN THEORIES OF FINANCE

payers and more beneficial to the Moslems. The view gen-
erally accepted is that it is collected at one time at the end
of the year.1 This is also the opinion of al-Shafi'i, and the
Malikites.2

The jizyah is canceled by conversion to Islam, by death,
and, according to Abu Hanifah, also by non-collection
(tadakhul). It is canceled by conversion to Islam, because
the dhimmi after this can serve in person for the de-
fence of the state. According to Abu Yusuf and Muham-
mad Ibn al-Hasan, the jizyah, like other debts, is collected
even if it has been allowed to remain uncollected for many
years. Abu Hanifah's argument in support of the con-
trary view is that the jizyah is imposed by way of punish-
ment, and, like other penalties imposed for the sake of God,
it is canceled if allowed to fall into arrears. Besides, from
the Moslem standpoint, the jizyah is a financial aid to the
state in lieu of the bodily assistance every citizen is obliged
to tender for the defence of the state, and in collecting the
tax for only one year the meaning (mafna) of assistance is
realized. Moreover, the main object in levying the tax is
the subjection of infidels to humiliation and this object is
secured by collecting the tax for the current year only and
letting that of the former years lapse.3

According to the Shafiites,4 conversion or death are a
bar to the jizyah only as regards the future, but such part of
it as has already accrued is collected. According to the
Malikites,5 they constitute a bar even as regards arrears.

When the jizyah is collected from the dhimmi he is
obliged to stand while the collector is seated, and he must

1 Mabstit, part x, p. 82.

1 Kharashi, p. 443. s Ibid.

4 Minhdj, vol. iii, p. 280.

6 Kharashi, p. 443; Dardlr, p. 204; Ibn Rushd., £., p. 327.

THE JIZYAH OR POLL TAX

407

wear the distinctive dress prescribed for the dhimmis.
During the process of payment, the dhimmi is seized by the
collar and vigorously shaken and pulled about in order to
show him his degradation, and he is rebuked in these words :
" Oh, dhimmi, or, Oh, enemy of God, pay the jizyah\ ", but
he is not addressed, " Oh, infidel ". The dhimmi, there-
fore, may not pay his jizyah by proxy, because this
would defeat one of the objects of the tax, namely, his
humiliation. However, in the opinion of the two disciples,
this is allowed.1 It should be noted, however, that Abu
Yusuf,2 far from subscribing to these extreme views of
later Hanifites, recommends to the calif Harun al-Rashid
gentleness (rifq) in the treatment of the dhimmi.

Al-Shafi'i,8 on the strength of the opinions held by a
number of people of knowledge ('Urn), concludes that the
humiliation referred to in the Koran consists in the sub-
mission of the infidels to Moslem rule (hukm al-islam),
and that consequently a people may not be admitted into the
status of dhimmi except on condition of submission to Mos-
lem law. Some of the later Shafiites hold that the reference
to humiliation in question requires that the dhimmi should
be humiliated literally in paying the jizyah by placing it in
the balance while he is standing with the head bent and the
shoulders stooped and while, on the other hand, the col-
lector, who is seated, seizes the dhimmi by his beard and
slaps his face on both sides, saying : " Oh, enemy of God,
give the right of God ". However, the prevalent Shafiite
doctrine severely condemns such a construction of the
Koranic reference to humiliation.4

1 Mabsat, part x, p. 81 ; Jdmi', vol. ii, p. 577; Bahr, vol. v, p. 121.

2 Yusuf, pp. 70, 71, 72.
8 Umnt, vol. iv, p. 99.

4 Minhdj, vol. in, p. 281 ; Fat h al-Qarib, p. 624 ; Wajis, vol. ii, p. 200 ;
Mugni, vol. iv, p. 230.

4o8 MOHAMMEDAN THEORIES OF FINANCE

Finally, according to the Malikites,1 the humiliation of
the dhimmis is a matter of obligation (wujub), and, there-
fore, they may not settle their jizyah by proxy; for it is
essential that they taste humiliation, and " perhaps they
will then decide to get rid of it by becoming Moslems."
According to the most extreme view quoted by al-'Adawi,
the humiliation of the dhimmi is necessary in order to
demonstrate their inborn hatred of the Moslems, their re-
futation of the Prophet, and the fact that if they had the
power they would exterminate the Moslems gradually.

1 Kharashi, p. 443 ; Dardir, p. 204.

CHAPTER VIII
OTHER SOURCES OF REVENUE

SECTION I

The Spoils of War '

THE word spoil (ganlmah, plural, gana'im) technically
means property taken by force from infidels during war.
Hence property taken from the infidels by Moslems who
entered the enemy land without the imam's permission is
not spoil, because such property has been seized not by
force, but by theft. If, however, the Moslems entered the
enemy's country in " force " (bi mana'ah) then the im&m's
permission is not necessary. The lowest number of raiders
that constitutes a " force " is four, or, according to a report
from Abu Yusuf , nine. The case of entering in " force "
is clear. As regards the case of permission by the imam,
the latter by permitting the raid has virtually engaged to
assist the raiders in case of need.2

According to the Shafiites,8 all property taken from the
infidels while war is going on, even property taken by theft,

1 Majma', p. 499 ; Hiddyah, vol. v, p. 215 ; Mabsu}, part x, pp. 37, 136 ;
'Alamkiriyyah, vol. ii, p. 290; Kasani, vol. vii, p. 117; Bahr, vol. v, p.
89; Durar, p. 167; Durr, p. 356; Mawardi, p. 217; Utnnt, vol. iv, p. 64;
Muzani, vol. iii, p. 179; Minhdj, vol. ii, p. 297; Wajiz, p. 290; Dardir,
p. 198; Yahya, p. 3.

1 Majma1, p. 505 ; Durr, p. 359.

* Mugni, vol. iii, p. 93; Kasani, vol. vii, p. 117; cf. Minhdj, vol. ii, p.
297; Wajlz, p. 290; Umnt, vol. iv, p. 64.

409

4io MOHAMMEDAN THEORIES OF FINANCE

is spoil. The Malikite view * is like the Hanifite. The
Malikites give the name of mukhtass (proper) to prop-
erty which is neither spoil nor fa'y, but belongs entirely to
the person who took it, such as property stolen from the
enemy.

When the imam conquers a place or a city by force of
arms (fanwat), he may divide the property taken, whether
lands or chattels, after the deduction of the state's share of
one-fifth, among the victorious army, since the Prophet had
done so with respect to Khaybar. Or the imam, if he
so chooses, may leave the lands in the hands of their original
holders, and impose upon their persons the jizyah, and upon
their lands the kharaj. The imam's right to relinquish to
the enemy his property applies only to landed property, not
to chattels, except in so far as they are indispensable for
the exploitation of the lands and the real estates which
have been left in the enemy's possession. Thus the calif
Omar left the lands and houses of Sawad to the original
owners. Or finally, the imam may expatriate the original
settlers, bring other infidels in their place, and impose on
them the jizyah and the kharaj.

Al-Shafi'i objects to making a present of their lands to
the owners when the lands have been conquered by force,
because, according to him, they are a booty of war, in such
case, and, like chattels, are the property of the soldiers;
he maintains that although the imam may set the unbelievers
free, or even kill them, if he chooses (for the right of the
soldiers to them is not so clear-cut) he has no right to de-
prive the soldiers of their unquestioned property. The
Hanifites reply that the exercise of an option by the
imam in this case is only in accordance with the interests
of the Moslems, for if he distributed these lands among

1 'Adawi, p. 426.

OTHER SOURCES OF REVENUE 41j.

the soldiers they would settle down on them in order to
cultivate them, and so they would stay away from the holy
war and the enemy would then return to the charge upon
the Moslems. Moreover, Moslems are often ill-adapted
to agriculture. Consequently, if the lands are returned to
the unbelievers who are more familiar with this art and are
made subject to payment of kharaj, the Moslems can de-
vote their time to the holy war. Furthermore there is no
prejudice in this for the soldiers' interests, for although in
the case of distribution the benefits are more immediate, in
the other case they are more persistent. Then, too, future
generations also have a right in these lands, and should
the lands be distributed among the victorious army, future
Moslems would have been wronged.1

The imam has also several options concerning the people
themselves inhabiting the country conquered. Thus he
may kill the captives, or he may make them slaves, or he
may do them a favor by allowing them to remain free as
dhimmis of the Moslem state, except when they are Arab
idolaters or renegades, who have to choose between the
sword and Islam. The captives however may not return to
their country, because it would result in the strengthening
of the enemy. According to the Jami', women and children
are not killed, but are made slaves for the benefit of the
fighters.2

It is not allowed to divide the spoils in the land of the
enemy, although Abu Yusuf says this is permissible. How-
ever, if the imam does not possess the means of carrying the
spoils to the Moslem land he may then divide the spoils
provisionally in order that they may be carried to the Moslem
land, where they are redivided definitely. In such case the

*Mabsut, part x, p. 40 ; Umnt, vol. iv, pp. 103-4, *93-

* Cf. Minhdj, vol. iii, p. 264; Mawardi, pp. 226, 232; Kharashi, p. 410.

4I2 MOHAMMEDAN THEORIES OF FINANCE

soldiers are entitled to wages for carrying the spoils en-
trusted to them. According to the Shafiites,1 the spoils are
divided in the enemy's country. The fighters and their
helpers are equally entitled to a share in the spoils, but not
the persons who have not fought. Thus the traders fol-
lowing in the wake of the army are not entitled to a share.
The fighters may use the spoils in the land of the enemy
before the spoils have been yet divided, if there is need for
doing so, e. g.f they may use the horses or arms taken from
the enemy. As regards forage, wood, oil, perfumes and
the like, these may be used by the soldiers even if they
should not need them.2 The fighters, however, may not
sell the spoils or appropriate them. Neither may they use
them after they have left the enemy's land ; on the contrary,
they must return to the spoil fund whatever remains in
their possession.

The imam may promise (tanfil) & the army more than
their regular shares in the spoils before the spoils have been
taken, and the war has ended, in order to induce them to
greater ardor in the fight. Thus the imam may promise the
soldiers the personal effects (salab) of the persons slain by
them, or a certain proportion of the property taken by them.
The personal effects of persons who are not killed in war,
such as women and children may not be promised, because
such a policy would encourage their killing. However it
is allowed to promise the personal effects of the traders who
follow the enemy or of the dhimmis who fight on the side
of the enemy. It is not permissible to promise extra shares
after the spoils have been taken, unless it be from the fifth
set apart as the state's share. The personal effects of the

1 Mawardi, p. 240 ; Wajiz, p. 291.

* Cf. Minhdj, vol. iii, p. 267.

8 Cf. Wajiz, p. 290 ; Kharashi, p. 427.

OTHER SOURCES OF REVENUE

slain belong in the spoils, if they have not been promised by
the imam as extra shares ; this being also the Malikite view.
The Shafiites, however, hold that the personal effects (salab)
of the killed belong to the soldier who killed him irrespective
of whether or not the imam had so stipulated.1

The spoils are divided among the army after the deduc-
tion of one-fifth as the state's share, according to Abu Hani-
fah and Zufar, at the rate of two shares to the horseman,
and one share to the footsoldier, but according to the two
disciples, al-Shafi'i and the Malikites, at the rate of three
shares to the horseman; one for himself and two for his
horse.2 In Abu Hanifah's opinion, the footsoldiers who
bought a horse after entering the land of the enemy, and
the horseman whose horse died before the battle are en-
titled to a full horseman's share. No shares, however, are
assigned to mules and animals used for transporting. The
slaves, mukatabs, minors, women and dhimmis, if they
have been helpful in bringing about the victory, do not re-
ceive a full share, but, at the imam's discretion, a small gift
(radkh) less than four-fifths of a full share.

SECTION II

The Tax on Mines and Treasure-trove *

The doctors have disagreed about the nature of the tax

levied on mines * and treasure-trove. The Shafiites con-
sider this tax as a case of zakat. So do the Hanbalites, who

1 Mawardi, p. 241.

'C/. Wajls, p. 292; Mawardi, p. 243; Kharashi, p. 432.

* Majma', p. 173; Hiddyah, p. 178; Durar, p. 121 ; Umnt, p. 36; Minhdj,
p. 247; Mawardi, p. 207; Mudawwanah, p. 50; Dardir, p. 124.

4 Following the usage of the doctors, mine is used in the sense of the
mineral produce extracted from a mine, since in that way only a mine
becomes an object of taxation.

414 MOHAMMEDAN THEORIES OF FINANCE

tax at the same rate as zakat, namely, one- fortieth. The
Hanifites, on the other hand, consider this tax as a case of
spoils and, as in the rest of spoils impose the rate of one-fifth.
Finally, Malik is said to have held both views.1 The author
of the Majma' says in this connection that according to the
Hanifites the proceeds of this tax are disbursed in the same
way as the spoils, and that they should have been treated by
the author (musannif) of the text under the section of
holy war rather than under zakat, except possibly for the
fact that according to al-Shafi'i this tax is a kind of zakat
provided for by special prescription (nass). Al-Zarqani,2
likewise, observes that the name zakat is used with respect
to this tax by way of metaphor, or because in some cases
it is subject to the zakat.

Much of the dispute concerning this tax turns upon the
determination of the meaning of the word rikaz which
occurs in the hadith : " And in the rikaz one-fifth ". Ac-
cording to the doctors,8 the word rikaz means any property
buried underground; whether by God, as the mine (mae-
dan), or by man, as treasure-trove (kanz). The Path 4
says that rikaz has both meanings literally (mushtarak) ;
but according to the Hidayah and the Bada?if, rikaz means
literally only a mine.5 The 'Inayah says that God created
mines in the Earth on the day He created the Earth. Sa'di
Efendi, however, objects to this additional qualification on
the ground that it is not known. The Majma' remarks that
the matter is open to discussion because there is a hadith

1 Qastallani, vol. iii, p. 83.

2 Vol. ii, p. 47.

3 Cf. Mabsut, p. 211 ; Durar, p. 121.
*Majma', p. 173.

8 The Shafiites and Malikites use ma' dan for mine and rikdz for
treasure-trove only. The Hanifites in general use rikdz for both
meanings and differentiate treasure-trove by the use of the word kanz.

OTHER SOURCES OF REVENUE

in which the Prophet said that gold and silver were created
on the day the Earth was created. The dispute on the
meaning of the word rikaz has an important bearing be-
cause, as al-Qastallani observes, in case rikaz means treas-
ure-trove alone, mines would be exempt from the tax of
one-fifth.

Mines. According to the Hanifites, mines are of three
kinds: those which are solids which may be melted and
which admit of imprints, like gold, silver, iron, copper, lead,
etc. ; those which are solids which do not melt and do not
admit of imprints, like gypsum, arsenic, coal, etc. ; those
which are liquids which do not become solid, like water
oil, etc.*

In the case of mines of the first kind, — the only kind
subject to tax, — according to the Hanifites, the fifth belongs
to the state. Al-Sarakhsi, in justification of this, says 2
that the veins in which mines are found have once been like
treasures, in the possession of the infidels before they came
under Moslem jurisdiction by force of arms, and therefore
they are a spoil of war and one-fifth of them belongs to the
state.

According to the Hanifites, if a Moslem or a dhimmi,
whether a freeman or a slave, minor or adult, man or
woman, should discover a mine of the first kind, like gold
or silver, in a land subject to tithe or kharaj, one-fifth of
the find is taken as tax, and the remaining four-fifths be-
longs to the finder, unless he is a musta'min ; the latter is ex-
cepted because he is a harbi and the harbis are not entitled
to a share in the spoils even when they have fought the
enemies of Islam with the imam's permission. However,
according to the Minah, the harbis and the musta'mins in the

1 'Indyah, p. 179.
p. 211.

4I6 MOHAMMEDAN THEORIES OF FINANCE

last case should be entitled to the share agreed upon between
them and the imam. According to the Mabsut,1 this should
also apply in case the harbi works a mine with the imam's
permission.

The finder gets the four-fifths as mentioned only in case
the land where the mine was discovered is not private
property (mamlukah), for in the latter case, after the de-
duction of the state's share of one-fifth, the four-fifths
belongs to the owner of the land instead of to the finder.

If the find is made in the finder's own habitation, or store,
according to Abu Hanifah, no tax is levied on the find, but
in the opinion of Abu Yusuf and Muhammad Ibn al-Hasan
there is levied a tax of one-fifth on the find because the
tenor of the respective hadlth is general. If, however, the
mine was discovered by the finder in his own land (milk),
there are two different views reported from Abu Hanifah.
The view cited in the Mabsut is that no tax is levied, but the
view cited in the Jamif Saglr 2 is to the contrary. The dis-
tinction between land and habitation is due to the consider-
ation that land is owned subject to public charges like tithe
and kharaj, whereas houses are owned subject to no taxes
whatever.

According to al-Shafi'i, mines do not pay this tax because,
like game, they were the property of no one when found,
and so they belong to the person who first found and seized
(ihras) them. Consequently, according to him, mines pay
a tax only in so far as they are subject to zakat, namely, if
they are gold or silver, provided, however, the nisab re-
quirements have been met. As regards the lapse of a year,
in one view of the matter he requires it, but, in another view,
he does not require it, since this requirement is in order that
productivity might materialize, and in the case of mines the

1 P. 215. 2 Cf. al-Jdmi' al-Saglr, p. 22.

OTHER SOURCES OF REVENUE

whole thing is a product (numa). This second view is
the prevalent one.1 According to the Shafiites, gold or
silver extracted from a mine at one time may be added to
that extracted at another in order to complete the nisab, so
long as the exploitation of the mine has not been definitively
abandoned. The nisab may be also completed by gold,
silver, and articles of trade which the miner may already
possess, even if their year has not completely run out.
Mines worked by dhimmis are not subject to tax, because
the tax levied on mines is zak&t, which may be levied on
Moslems alone.

According to Malik, mines, like crops, are a kind of pro-
duce derived from the earth, and therefore if they are gold
or silver they pay zakat subject to the requirement of
nisab f though not that of the lapse of a year.2 According
to the Malikites,3 the nisab may be completed from gold or
silver extracted from the same vein ((irq), regardless of
continuity of extraction. Once the nisab has been reached,
later findings, no matter how little, pay zakat pro rata. If
the mine extracted falls under the description of nadrah
(literally, rarety), namely, pure gold or silver which
does not need smelting, it is considered a treasure-trove
(rikaz). Consequently, such finds are not subject to
zakat but pay the tax of one-fifth levied on treasure-trove,
irrespective of the nisab requirement, even if they are dis-
covered by an infidel or slave. If, however, the extraction
of the nadrah involves great expense or labor, then, as in
treasure-trove, it is subject to zakat as a mine.

According to Abu Hanifah and Muhammad Ibn al-
Hasan, there is no tax of one-fifth on pearls and amber-

1 Wajiz, p. 96; Mawardi, p. 207.
1 Ibn Rushd, A/., p. 226.
1 Kharashi, pp. 112-3.

4Ig MOHAMMEDAN THEORIES OF FINANCE

gris, and, in general, on anything taken out of the sea, even
if it is gold or sliver, because, being at the bottom of the
sea, these things are proof against conquest, but the tax
applies to the spoils of war only. Likewise, there is no
tax on stones, like turquoise, sapphires, topaz, emeralds,
etc., when they are found in the mountains, because the
Prophet said : " There is no fifth on stones ". Both sea
products and stones are taxed, however, if found in the
treasure store of the enemy. There is a tax on quicksilver,
according to the last opinion of Abu Hanifah. According
to Abu Yusuf, however, quicksilver is not taxed; but on
the contrary, products of the sea used as ornaments, such
as pearls, are taxed, since Omar taxed ambergris.1 Ac-
cording to the Shafiites and the Malikites,2 none of them
pay zokat as such, though they may pay as articles of trade-

Treasure- trove (kanz). Treasures are of three kinds:
Treasures which bear a sign of Islam, such as the sentence
of testimony to the existence of one God; those which do
not bear any sign; thirdly those which bear a sign of the
pre-Islamic age, such as a picture of a god, or the cross.

Treasures of the first kind legally are property lost and
found (luqatah), that is, property owned by a Moslem,
and therefore they are not subject to tax. Treasures of
the second kind, according to the most reliable Hanifite
report (Zahir-al-madhhab), are considered to be like those
of the third kind, since the presumption (as/) is that they
are of pre-Islamic origin; but some hold that they are like
those of the first, because, they argued, treasures found now-
adays are probably of Islamic origin, owing to the long
standing of Islam.

Finally, treasures of the third kind are subject to a tax

1 Hiddyah, p. 184; Jdmi', p. 319.
3 Minhdj, p. 246; Kharashi, p. 116.

OTHER SOURCES OF REVENUE 419

of one-fifth, the remaining four-fifths belonging to the
person who found them; provided he is not a musta'min,
and the treasure has been found in a land which is not
owned (mamlukah) by any one, e. g., in the country, or the
mountains. It makes no difference whether the finder is
adult or minor, free or slave, Moslem or dhimmi, man or
woman. In case the treasure has been found by a musta'-
min, the entire treasure belongs to the state.

If, however, the treasure has been found in a land owned
(mamlukah) by a private individual, according to Abu
Yusuf, the remainder after deduction of the state's share of
one-fifth still belongs to the person who found the treasure ;
but according to Abu Hanifah and Muhammad Ibn al-
Hasan, it belongs to the person to whom the land was given
(khittah) at the time of its conquest, or to his heirs, if they
are known, otherwise, following al-Sarakhsi, to the earliest
known owner of the land; according to Abu '1-Layth,
however, it belongs to the public treasury; this last
view being approved by the Majma'. The above applies
in case the two parties agree that the thing found is a treas-
ure-trove, for if the owner of the land says that he had him-
self buried it, his statement is believed after he has sworn to
it. The argument of Abu Hanifah and Muhammad is
that the person to whom the land was given after conquest
owns both its surface and what is below the surface, and
when later he sells it to others, he transfers the ownership
of the surface of the land only, not the inside of it; hence
the treasures buried in the land remain the property of the
original owner, exactly as the pearl found in the belly of a
fish belongs to the person who caught it, not the party who
bought the fish from him. The reasons for the view of Abu
Yusuf who in this connection departs from analogy and
judges by istihsan, is that the person who found the treas-
ure is the one who really discovered and occupied it. Be-

42O

MOHAMMEDAN THEORIES OF FINANCE

sides, it may not be said that the imam, in dividing the lands
after conquest, also transferred the ownership of the treas-
ures possibly buried in the lands, because the imam is just,
and such a thing would result in injustice, since all lands
are not alike in respect to treasures. Consequently the
treasures continue to be property of no one, and the person
who discovers them owns them. The others reply that the
imam is only obliged to be just within the bounds of the
possible, and he cannot possibly be so with respect to the
treasures ; moreover, it is not claimed that the imam actually
transfers the ownership of the treasures buried in the land,
but simply that he prevents other soldiers from encroach-
ing on them and that for this reason they become the prop-
erty of the person to whom the land including them was
given.1 Mines lying in a piece of land, however, belong to
the present owner, because, according to the Hidayah,2 un-
like treasures which are distinct from the land where they
are buried and are, as it were, trusts to the land, mines are
intimately mixed with the particles of the land, and there-
fore when the land is sold the mines are also sold.

If a person enters the land of the harbis by way of
aman and finds in the country, that is, in a land which is
not owned by any one, a mine or a treasure, (according
to some, a mine only), the whole of the find belongs to the
finder, since, not being in the possession of any one, no
injustice is involved. According to Abu Yusuf, one-fifth
of the find is taken as a tax. If, however, the find is
discovered in a house or land owned by a harbi, the find
is then returned to the owner of the house or the land, since
he owns what is in them also. If the finder fails to return
the find to its owner, but brings it with him on his return

1 Mabsiit, p. 214.
* P. 183.

OTHER SOURCES OF REVENUE 421

to the Moslem country, the find becomes his property,
but it is an impure (kliabith) property. With respect to
property found by a Moslem in the territory of the harbis,
the Path * observes that, although property found under
similar circumstances by a harbl in Moslem territory be-
longs to the Moslem state, property found in the territory
of the harbis by a Moslem belongs to the latter, because,
the land of the harbis being one where law does not rule,
only actual possession there counts ; the Moslem land on the
contrary, is one of law, and in the eyes of the law, hypo-
thetical (hukmi) possession is like actual possession. The
above applies in case the Moslem entered the territory of
the harbis after having obtained aman from the harbis;
for if he entered without aman for the purpose of robbing,
such property as he finds in the country is not taxed, since
the tax is levied on spoils only and this property is not a
spoil of war.

According to the Shafiites,2 treasure-trove of pre-Islamic
origin is subject to zakat at the rate of one-fifth, if it
consists of gold or silver and is of nisdb quantity. The
lapse of a year, however, is not required. Because the tax
levied on treasure-trove is zakat, the dhimmis do not pay it.

According to the Malikites,3 treasure-trove of pre-
Islamic or doubtful origin is subject to a tax of one-fifth,
whether it is in large or small quantity, gold or silver or
other than gold or silver, found by Moslems or found by
infidels. Treasure-trove is, however, subject to zakat if
its unearthing involved great labor or expense, and in such
case all the conditions of zakat must be met excepting the
one concerning the lapse of a year.

1 P. 184.

* Minhdj, p. 248; Wajlz, p. 97; Mawardi, p. 207.

3Kharashi, p. 113.

422 MOHAMMEDAN THEORIES OF FINANCE

SECTION III

The Tax on non-Moslem Traders, and the Estates of
Deceased Persons

The tax on non-Moslem traders, whether they are dhim-
mis, or harbis who entered the Moslem state with aman
(mustafmin) for trade, is collected by the 'ashirs, who also
collect from Moslems, who pass them on the public road,
their zakat dues. As the details pertaining to the rates
and the method of collection have been already explained in
the first two sections of chapter III on Collection, they will
not be repeated here.

The estates of deceased persons or the blood price of
murdered persons who left no lawful heirs, or left only a
husband or a wife, and who have not disposed of these
estates by will are a source of negligible importance, and
therefore need only to be enumerated here in order to
complete the list.1

1 Kasani, p. 68.

CHAPTER IX

THE PUBLIC TREASURY AND THE MOHAMMEDAN COUN-
TERPART OF A BUDGET

EVERY property (mal) which belongs to Moslems in
general and not to any Moslem in particular constitutes a
part of the assets (huquq) of the public treasury (bayt-al-
mal). It is not necessary that the property should be actu-
ally in the vaults (Jjirs) of the treasury for it to be con-
sidered an asset of the treasury, because the conception of
bayt-al-mal refers to the destination (jihah) of the prop-
erty, not to its actual location. Therefore every expendi-
ture (haqq) which must be incurred in the interests of
Moslems in general (masalih al-muslimin) is a liability of
bayt-al-mal and when it is made, it is considered to have
been made by it, whether or not it has actually been paid out
of the vaults of bayt-al-mal ; this is for the reason that a
revenue which has gone into the hands of the public col-
lectors or has been spent directly by them is really a part
of the income and outgo of the bayt-al-mal itself, and is
therefore subject to the regulations governing the same.

In other words, according to the Shafiite conception, the
term "public treasury" applies only to those revenues of the
Moslem community or state whose disbursement has not
been prescribed by the sharl'ah in favor of definite classes
of Moslems, but which belong to the Moslem community
at large and are disbursed by the imam, its lawful head,
for the common Moslem interests, namely, in meeting the

1 Mawardi, p. 366.

423

424 MOHAMMEDAN THEORIES OF FINANCE

general expenses of the state. The " public treasury ", then,
does not exhaust the various items of revenue accruing to
the Moslem community or state,1 for a revenue might be
a source of income to the state to meet its obligations and
yet technically not be a part of the assets of the public treas-
ury. Consequently, the distinction of revenue between these
two classes does not mean that because an item of revenue
is not an asset of the public treasury it is not also a revenue
of the state; in the last analysis it amounts to this, namely,
that certain of the activities of the Moslem state, as well as
the revenues and the expenses necessary for them, owing to
their importance, have been defined and prescribed by the
shari'ah itself, while other activities considered less im-
portant, and, as it were, matters of course, were left to the
discretion of the constituted authorities of the Moslem state.
The revenue necessary for these latter activities constitutes
the assets of the public treasury.

The Malikites, although they do not expressly state the
meaning of bayt-al-mal, nevertheless imply by their use
of the term,2 that they hold a similar view of the matter.
Finally, the Hanifites, likewise fail expressly to define their
position, but the fact that they apply the expression to all
the revenue of the state * would force one to the conclusion
that they mean by it every revenue which accrues to the
state, whether or not the imam has a free hand in its dis-
bursement.

1 One may distinguish three kinds of re venue: revenue for the Moslem
community proper, such as the four-fifths of the spoils divided among
the victorious army; revenue for the state, such as the fifth part of
the spoils set apart for the state; finally, there is revenue for the
public treasury as distinct from either.

J Kharashi, p. 121, 1. 3; pp. 127, 427; 'Adawi, p. 123; Ibn Rushd, B.,
P- 329-

8 Bahr, vol. v, p. 128 ; Majtna', p. 520 ; Kasani, p. 68.

THE PUBLIC TREASURY 425

There are * three distinct classes of revenue (tnal) which
accrue to the Moslem community or the Moslem state as
distinct from the public treasury (bayt-al-mal). They are:
(i) the sadaqah or zakat revenue (amwal al-sadaqat),
such as the zakat and tithe; (2) the booty revenue (garii-
mah), namely, the spoils of war; (3) the fa'y revenue,
such as the jisyah and the kharaj. The first applies to
revenue derived from Moslems, the other two apply to
revenue taken from infidels. Gammah means property
taken from the infidels by assault ('anwat) with arms in
hand, whereas fa'y 2 is property given by the infidels "spon-
taneously ('afzua) 3 without fighting and without making
horses and riders run." 4

These three classes of revenue differ 5 from one another
as follows: The sadaqah revenue differs from the other
two classes in four respects :

( i ) The sadaqah is received from the Moslems for their
purification; the others are taken from the infidels for re-
venge.

1 Mawardi, p. 217; (7mm, vol. iv, p. 63.

3 Fa'y literally means " that which came back," in this instance, as al-
ShafVi (Muzani, vol. iii, p. 183) remarks, "that which God returned to
His people (without fighting on their part) from those who opposed
His religion," the theory implied being that property taken as spoils, as
a matter of law, belongs to the Moslems. (Cf. Berchem, p. 9.) Ac-
cording to some, fa'y is spoils taken without difficulty (al-Ragib).
According to Abu 'Ubayd, it is property taken from the enemy after
the cessation of hostilities, such property belonging to all the Moslems.
According to the Mafdtlh (p. 58), it is the revenue derived from a
country conquered by force. According to 'Ali Ibn 'Isa, fa'y is more
general than ganintah (spoils), applying to everything accruing to the
Moslems from the enemy (Mugrib, vol. ii, p. 80). Finally, according
to the Mijbdh, it is the kharaj and the spoils.

1 According to Ibn Rushd, B. (p. 325), "through terror and fear."

'Cf. Yahya, p. 3.

6 Mawardi, p. 217; cf. Umtn, vol. iv, p. 614.

426 MOHAMMEDAN THEORIES OF FINANCE

(2) The destination of the sadaqah has been entirely de-
termined by special provision (nass), whereas that of the
others is partly determined by the imam's ijtihad.

(3) In the case of sadaqah, the taxpayers may themselves
pay it directly to the beneficiaries, while this is not allowed
in the others.

(4) The destination of the sadaqah is different from that
of the others.

As regards the ganimah and fafy revenues, they agree and
differ in two points respectively:

(1) The points of agreement: both are taken from in-
fidels, and one-fifth of both is disbursed alike.

(2) The points of difference: ganimah is taken by force
of arms (qahra), whereas fa'y is taken peacefully (fafwa),
and secondly, the beneficiaries of the four-fifths of the
ganimah are different from the beneficiaries of the four-
fifths of the fa'y.1

2 Of the above three classes of revenue which may ac-
crue to the Moslem community or the state, namely, the
sadaqah, booty, and fa'y revenues, the (four-fifths of) fa'y
revenue is a part of the public treasury because its dis-
position is made according to the personal judgment of the
imam. On the contrary, the (four-fifths of) booty reve-
nue is not a part of the treasury — and on this point the
Hanifite and Malikite views are at one, — for the benefic-
iaries of the booty revenue have been prescribed by express
revealed provision (nass), and are definite persons, namely,
the army who fought the battle, and the imam may not dis-
pose of the booty in any other way.

As regards the fifth part of the fa'y revenue, and the

1 The above is according to the Shafiites. The Hanifite and Malikite
views somewhat differ.
8 Mawardi, p. 367.

THE PUBLIC TREASURY

427

state's part of one-fifth of the booty revenue, each con-
sists of three distinct parts: (a) part of it, the Prophet's
share, belongs to the treasury, since it is disposed of by the
imam of the community for the time being according to his
own judgment; (b) part of it, namely, the share of the
Prophet's relations (dhawu al-qurba) does not belong to
the treasury, since its beneficiaries are known, and the imam
has no voice in its disposition; (c) finally, a third part is
kept in the treasury as a trust fund on account of the var-
ious purposes for which it is destined. This last part con-
sists of the shares set aside for orphans, the indigent, and
wayfarers. They receive their shares, if they are present;
otherwise their shares are kept for them.

Applying the Shafiite conception of public treasury to
the Malikite view,1 the entire fa'y and the state's part of
one-fifth of the booty revenue would be assets of the public
treasury, for, according to the Malikites, both are disposed
of by the imam according to his own proper judgment.
Finally, applying the same test to the Hanifite views, the
entire fa'y revenue would be distinctly an asset of the public
treasury. On the other hand the state's part of one-fifth
of the booty revenue would be outside of the public treas-
ury to the extent that it must be disbursed to definite
classes of people, such as orphans; though, in so far as it
may be disbursed by the imam to any one of those classes
exclusively, it might properly be classed as an asset of the
public treasury.

Finally, the sadaqah revenue is of two kinds: the
sadaqah revenue levied on non-apparent property, which
does not form a part of the treasury's income, since
the property owners may themselves disburse their zakat
dues directly to the beneficiaries, such as the poor, with-

1 Kharashi, p. 427.

428 MOHAMMEDAN THEORIES OF FINANCE

out resorting to the intermediary of the public collectors;
secondly, the sadaqah revenue derived from apparent prop-
erty; namely, the tithe and the zakat collected from
cattle. This second kind of sadaqah revenue, according to
al-Shafi'i, is not a part of the treasury, because the bene-
ficiaries are known and the funds may not be disposed of in
any other way. Al-Shafi'i, however, holds two different
views concerning the lawfulness of keeping this revenue
in the treasury as a trust when it is not possible, for some
reason or other, to disburse it to its beneficiaries. His
earlier opinion was that such funds should be kept in the
treasury as a trust until the appearance of the rightful
claimants. Later, al-Shafi'i abandoned this opinion in favor
of his later opinion which is that the treasury may not keep
these funds in its vaults as a matter of right, although they
may be entrusted to the treasury for safekeeping.

Applying the Shafiite conception of public treasury to
the Hanifite views concerning the disbursement of zakat
revenue from apparent property, we may say that to the ex-
tent that such revenue must be disbursed to certain specified
classes of people it is not a part of the public treasury, but in
so far as the imam may disburse it to any one or more of
those classes exclusively, and in view of the comprehensive
and loose meaning which has been given to those classes,
such revenue may properly be said to be a part of the public
treasury. The zakat from non-apparent property, however,
is in no way a part of the public treasury. What is true
of the Hanifites as regards zakat from apparent property
is even more true of the Malikites, for, according to the
latter, the imam might disburse the entire sadaqah revenue
to public functionaries exclusively, even if they should be
rich. Moreover, as we have already seen, the Malikites
practically assimilated the zakat of non-apparent property to

THE PUBLIC TREASURY

429

that of apparent property by requiring the payment of the
former to the state officials.1

A detailed description of the various items of revenue,
classed by the three schools under one or the other of the
three classes of revenue above mentioned, follows :

(i) The sadaqah or zakat revenue designated in this
dissertation under the expression of zakat taxes, according
to the Hanifites,2 consists of the zakat of non-apparent prop-
erty disbursed to the zakat beneficiaries directly by the
owners, namely, the zak&t of gold and silver and the zakat
of the articles of trade; as well as the zakat of apparent
property collected and disbursed by the state, as the
zakat of animals, the zakat collected by the 'ashirs from
apparent and non-apparent property of Moslems only, and
the zakat of produce or tithe. According to the Shafiites,*
the tax of one-fifth levied on treasure-trove (rikaz} and
the tax collected on mines (ma'dan) also form a part of
zakat revenue. Al-Shafi'i, in this connection, remarks that
whatever is due on a Moslem's property in virtue of a pre-
scription found in the Koran, or the sunnah, or an ijmaf of
Moslem laymen ('awamm al-muslimin, that is, all Moslems,
laymen or mujtahids), "its meaning is one, namely, it is
zakat, and zakat is sadaqah, and its disbursement is always
one and the same as God divided the sadaqahs." Accord-
ing to the Malikites, on the other hand, taxes levied on
mines and treasure-trove are a part of sadaqah revenue
only in so far as they are levied at the regular zakat rate
of one-fortieth.4

^Adawi, p. 120.

1 Majma', p. 520; Kasani, p. 68; 'Alamkiriyyah, p. 268; Bafrr, vol. v,
p. 128.

3 Utntn, p. 71 ; Wajlz, pp. 96, 97; Minhdj, pp. 247, 248.
4Kharashi, pp. in 113, 427.

430

MOHAMMEDAN THEORIES OF FINANCE

(2) Booty (gammah) revenue consists of spoils of war,
mines, and treasure-trove. One-fifth of the booty revenue
is levied by the state as a tax. According to the Shafiites,
booty revenue consists of the spoils of war alone. The tax
levied on mines and treasure-trove is considered by them
as zakat. Finally, according to the Malikites, the tax levied
on mines and treasure-trove is considered booty revenue
only if levied under the name of one-fifth (khums).1 This
tax applies to the treasure-trove, and, in mines, to the gold
or silver ingots called nadrat, provided the unearthing of
neither has involved great expense or labor. In the latter
case, treasure-trove, as well as nadrats, are subject to zakat.

(3) The fa'y revenue consists of the kharaj, the jizyah,
the dresses (hullah) paid by the people of Najran, the
double rate of zakat paid by the tribe of Taglib, the tolls
collected by the 'ashirs from the dhimmi and harbi traders,
and the estates of dhimmis who left no will and no
heirs, or only a husband or wife,2 also 8 the payment for a
truce (hudnah), property taken from a country whose
population has fled, property given to the Moslems by the
harbis as a gift, property belonging to apostates (murtadd),
etc. The Malikites merge this and the preceding class into
one single class so far as disbursement is concerned.4

(4) According to the Hanifites, there is a fourth class
of revenue consisting of property lost and found (luqaiati),

1 Because the rate of one-fifth is the rate prescribed for the spoils of
war, the Malikites, unlike the Shafiites, consider every revenue collected
on the basis of such a rate as identical with the revenue derived from
the spoils of war.

2 Bahr, vol. v, p. 127; but cf. Path al-Mu'ln, vol. ii, p. 456; Majma',
p. 520; Kharashi, p. 427. On wills of dhimmis, see Majma', vol. ii, pp.
564-5; Path al-Mu'ln, vol. iii, p. 546; Wajiz, p. 269; Kharashi, pp.
444-5-

8 Umm, vol. iv, p. 77 ; Wajlz, p. 288.
* Kharashi, p. 427.

THE PUBLIC TREASURY 43 x

and the estates (tarakah) left by Moslems,1 who leave no
heirs, or leave only a husband or wife.2

As the appropriation of the first three classes owing to
their importance will be discussed separately, only the ex-
penditure of the fourth class will be explained here. The
revenue from this source is appropriated for the support
of sick people who are poor, and for the buying of their
medicines, for the funeral expenses of the dead who leave
no estates, for the support of foundlings (laqlt), for com-
pensation for crimes committed by them, for the support
of persons who are unable to earn a living and who do not
have a relation on whom their support legally rests, and
for similar purposes.3

It is the duty of the imam to keep each of the above-
mentioned four classes of revenue apart from the others in
separate treasuries, because each has certain peculiarities of
its own. If no property is available in one of them, the
imam may borrow funds on its account from the others.
When he does so; if for instance, he borrows money on
account of the kharaj treasury from the zakat treasury; he
must return the amount borowed from the latter when the
kharaj is collected, unless the fighters who are beneficiaries
of the kharaj are poor; in the latter case the fighters by
being poor have a share also in the proceeds of zakat, and
therefore the amount taken from the treasury of sakat is
not really a loan. If, on the other hand, the imam borrows

1 Bahr, vol. v, p. 127; but cf. Path al-Mu'in, vol. ii, p. 456; also,
Kasani, p. 68; 'Alamkiriyyah, p. 268; Majma', p. 520.

a When the husband or the wife is the only heir, he or she is entitled
to the prescribed share (faridah) only, the rest devolving to the state.
It would, however, be a different matter if the only heir were another
relative, say, a sister, for she being of the class of heirs called sahib
al-radd (literally, one to whom the balance is turned over), receives
also the balance after the deduction of her prescribed share.

* Majma', p. 520; Kasani, p. 68; 'Alamkiriyyah, p. 268.

432 MOHAMMEDAN THEORIES OF FINANCE

money on behalf of the zakat account from that of the
kharaj and distributes it to the poor, it does not become a
loan on the charge of the poor, because, the kharaj being
treated like (lahu hukm al-fa'y) the fa'y and the gariimah,
which are disbursed to provide for the needs of the Moslems,
the poor have a share in them, and if they do not actually
receive a share from them, it is only because the proceeds
of the zakat revenue are sufficient for their needs.1

According to al-Mawardi,2 if the treasury has to meet
two claims,* while there are sufficient funds for only one
of them, that claim is settled first which is a debt (dayn)
upon the treasury. If the funds are not sufficient for either
claim, then it is allowed to the official in charge to borrow
money on account of the treasury in order to settle the
debts, if he fears that a contrary policy would result in
evils; but he may not borrow money to settle claims which
are in the nature of donations (irtifaq). When he bor-
rows money, his successor is obliged to pay back the loans
as soon as the treasury has sufficient funds. If, on the
contrary, the funds of the treasury are more than sufficient
for the settlement of the claims, opinion varies as to the man-
ner in which the surplus should be disposed. Abu Hani-
f ah holds that the surplus must be laid aside in the treasury
in order to meet future emergencies, but al-Shafi'i thinks
that the surplus is not laid aside, because the meeting of
future emergencies becomes an obligation only after the
emergencies have occurred. A similar view is expressed
in the 'Alamklriyyah, where it is stated that when there is
any surplus left it is divided among the Moslems at large,

1 'Alantkiriyyah, p. 268; Mabsut, part iii, p. 17; cf. p. 18.

1 P. 369.

8 Of course, here it is a question of claims which have to be paid out
of the same class oT revenue.
4 'Alamkiriyyah, p. 268.

THE PUBLIC TREASURY 433

and if the im&m fails to do this, he suffers the evil conse-
quences of his failure. It is the duty of the imam to dis-
burse the revenues to their rightful claimants and not to
deprive them of their rights. The imam and his assistants
are not allowed to take from these revenues more than
the needs of their families and themselves, and they are not
allowed to hoard the revenues. It is recommended that
the imam and the collector do not advance to themselves
their salaries for the coming month, but that they take their
salaries only for the current month.

The dhimmis have no share in the revenues of the
treasury, except when the imam sees a dhimmi starving
from hunger, in which case it is his duty to give him some-
thing from the treasury, because the dhimmi is residing in
the Moslem state and the imam is under obligation ('atoyhi)
to keep him alive.1

According to al-Shafi'i,s the imam may not disburse to
dhimmis from the fa'y revenue, any more than he may do
so from spoils and sadaqah revenue. For all these revenues
(mal allah) belong to Moslem beneficiaries and " it is pro-
hibited (har&m) for the imam — but God, may He be ex-
alted, knows better — to take a Moslem's right and give it
to another, and how (might he give it) to a dhimmi\"
for whom God assigned no share in any one of those
revenues.

There has been difference of opinion among the dis-
ciples of al-Shafi'i* on the question as to whether real
estate devolving to the public treasury by that very fact
becomes immobilized (waqf). Some hold that these estates
by becoming a part of the treasury assets become immo-

1 'Alamkiriyyah, p. 260; but cf. al-Sarakhsi (Mabstf, part iii, p. 19).
1 Umm, vol. iv, p. 102.
* Mawardi, p. 336.

434 MOHAMMEDAN THEORIES OF FINANCE

bilized in order that their income may be used for the gen-
eral expenses of the treasury, and that therefore their sale
and concession (iqtaf) are unlawful.1 Others hold that they
do not become immobilized until they are so constituted by
the imam, and that hence the imam may sell them if he sees
fit for the interests of the treasury. The price realized is
expended for the general needs of the treasury and for those
of the beneficiaries of fa'y and sadaqah who are in need.
With regard to the concession (iqta') of the ownership of
such estates, it is said that such concession is lawful since
it is lawful to sell them and give away their price to people
who are in need and for other general needs approved by the
imam. In fact, there is no difference between alienating
the ownership of real estate and giving away the price real-
ized from its sale. Others contend that such estates may
be sold because a sale is a bilateral transaction, but that
their concession is unlawful, because that is a case of dona-
tion (sttah) and in the matter of donations, fleeting cash dif-
fers from the permanent real estate of which it is the price.
According to the Hanifites, real estate ((aqar) such as
lands devolving to the public treasury becomes, according
to one opinion, a perpetual waqf (waqf mu'abbad),2 but
the general view is that such real estate is like that of the
orphan; the authority of the imam or the guardian (wali)
being valid with respect to the real estate of the public treas-
ury or the orphan respectively, only in so far as it is con-
ducive to their interests. According to one view, real estate
of the public treasury differs from that of orphans as well
as from waqf estates in that, unlike them, it may be leased
for indefinite terms.3

1 Cf. Minhdj, vol. ii, p. 297 ; Wajiz, pp. 248, 289.

*Al-'Uqud al-Durriyyah, p. 176.

* Itkdf al-Absdr, p. 191 ; Durr, p. 364; Fatb al-Mu'lnt vol. ii, pp. 446-7.

THE PUBLIC TREASURY 435

Finally, the Malikite view in regard to real estate con-
quered by force from the infidels, as we have already seen, is
to the effect that such estate by the very fact of conquest
becomes waqf property.1

According to the Malikites,2 the sale by the state of its
waqf estates is unlawful. According to the earlier Hani-
fite authorities, the alienation by sale of the real estate of
orphans, and, by analogy, that of the public treasury is only
allowed ( I ) in case of need for funds which could not other-
wise be procured. Later authorities however allow it in
six other contingencies; (2) if there is a demand for it at
double its value; (3) if the deceased left debts to be settled;
(4) if the deceased left a will (wasiyat mursalah) which
can only be executed by selling the real estate; (5)
if the income from the estate does not exceed its expense;
(6) if the estate consists in a house or store whose depre-
ciation is feared; (7) finally, if the estate is in the hands of
a person of power (mutagallib), and it is feared that he will
appropriate it, it may be sold to him.1

It is not lawful for the imam to buy a land of the public
treasury from the agent (wakll) of the latter, but if he

1 It must be pointed out that while the Shafiite and Hanifite views
above quoted refer to any real estate which became an asset of the
public treasury, the Malikite view refers only to such estate as has
been conquered from the infidels by force ('anwat). What the Mali-
kite view is concerning real estate in general, I have been unable to
discover, but the fact that the Malikite doctors, speaking of lands of
deceased dhimntis, refer to their devolving to "the Moslems in gen-
eral" rather than to their being made waqf (Kharashi, p. 427; Ibn
Rushd., M., p. 280), as occurs with respect to lands conquered by
force, would seem to indicate that according to the Malikites the dis-
position of such lands is left to the judgment of the imdm. Such a
construction is also borne out by the Malikite policy of allowing the
imdm greater latitude than is customary with the other schools.

2 Kharashi, vol. v, pp. 94-5.

1 Majma', vol. ii, p. 571 ; also vol. i, p. 561 ; Quduri, p. 65.

MOHAMMEDAN THEORIES OF FINANCE

desires to buy a certain land, according to an opinion cited
in the Waqi'at, he first orders the sale of the land to a third
party and then buys it from that party. If the conditions of
the purchase of a public treasury land are not known, the
presumption is that the purchase was valid. It is lawful
to constitute a waqf of a land bought from the public treas-
ury, and in such case the conditions of the waqf founder
are valid, and the land is exempt from kharaj.

The liabilities x of the public treasury are of two kinds:
( i ) Liabilities resulting from property kept in the treasury
for safe-keeping (hirs) as trust. Such liabilities are en-
forceable by the claimants only when the funds are present
in the treasury, but the claimants have no action against
the treasury when there are no funds. (2) Liabilities
arising with respect to revenues which are the treasury's
own assets, (a) One part of these liabilities is incurred
for value received (badal), e. g., by way of compensation,
for the pay of soldiers, or the price of horses and arms;
and these claims may be demanded by the persons entitled to
them, irrespective of whether or not there are funds in the
treasury. If there are available funds the claims are settled
at once. But if there are no funds available, the creditors
must wait.

The Shafiites * have answered in four ways the question
as to whether a person may himself collect from the
public treasury funds which came into his hands a claim
of his which the sultan had failed to settle. In one
view of the matter, he may not take anything for his claim
because the funds of the public treasury are the joint prop-
erty of many persons and he does not know what his share
is. A second view is that he takes every day enough for

1 Miwardi, p. 368.
1 Mugni, vol. iii, p. 88.

THE PUBLIC TREASURY 437

the food of that day. A third view is that he takes enough
for one year. A fourth view is that he takes his stipend,
which is his share. This last view is in accordance with
analogy, because the treasury funds are not joint property
of the Moslems in the sense in which spoils are the joint
property of the army, or the estate of the deceased is the
joint property of the heirs, for, unlike the case of spoils and
estates, should the person in question die, his heirs are not
entitled to his stipend.

According to the Hanifites,1 if a person who has a claim
on the public treasury happens to lay hands on a public
fund, he may keep it on account of his claim, so far as his
religious duties are concerned, but the imam- may prevent
him from so doing, if he chooses.

(b) The other part consists of the liabilities which have
been incurred, for the general interest or by way of assist-
ance (irfaq), for no consideration of value whatever. The
settlement of these liabilities is conditioned upon the exist-
ence of funds in the treasury. Consequently, when there are
funds in the treasury these liabilities must be met, and in
such case the obligation (fard) of the Moslems at large in
this respect lapses. If, however, there are no available
funds in the treasury, the liability of the treasury is ipso
facto canceled but, if the need to be met by that liability was
such that its neglect would affect the entire Moslem com-
munity, the liability becomes a fard kifayah obligation upon
all the Moslems, and ceases to be so only after a sufficient
number of them have met the liability. For example, the
holy war must be financed by the treasury so long as there
are funds in it, but if no funds are available, then the obli-
gation of the treasury ceases to exist by that very fact, and
the financing of the jihad becomes a duty of the Moslems

1 'Alamkiriyyah, p. 269.

438 MOHAMMEDAN THEORIES OF FINANCE

at large, until a sufficient number of them have volunteered
to finance and carry out the holy war. If, however, the
need to be met by the liability is one whose neglect does not
result to the injury of all the Moslems ; such as the bad con-
dition of a road which however may be replaced by another
road, or such as the cutting-off of a city's water supply for
which however another water supply may be substituted;
then the obligation of making the necessary repairs is re-
moved from both the treasury and the Moslem community.1

1 See supra, pp. 35O-353-

CHAPTER X
EXPENDITURE OF THE ZAKAT TAXES x

The various beneficiaries of the zakat taxes have been
determined on the basis of the following Koran verse 2 re-
specting the disbursement of sadaqah 3 in general : " Verily
the sadaqahs are for (/*) the poor, the indigent, the respec-
tive public agents, the mu'allafah qulubuhum, and [are dis-
bursed] with respect to (fi) the slaves (riqab) and the
debtors and with respect to ' the way of God ', and the way-
farers."

According to the Jami', the beneficiaries of the zakat do
not have the right to demand settlement of the zakat, nor
may they themselves take the zakat without the zakat

1 Mo/ma', p. 179; Hiddyah, p. 200; Bahr, p. 258; 'Alamkiriyyah, p.
263; /ami', p. 334; Durr, p. 144; Durar, p. 123; Mabstt, part iii, pp. 8-
15; Minhdj, vol. ii, p. 302; Mugni, vol. iii, p. 99; Mawardi, p. 210;
Umm, pp. 60-80; Wajls, p. 292; Kharashi, p. 116; Muwatta, p. 115;
Mudawwanah, pp. 46, 55-61 ; Zarqani, p. 63.

1 Chap. 9, verse 60.

8 The Mohammedan writers consider sakdt, as we have already seen,
as a special case of sadaqah, which by extension applies in general to
any disbursement made with a view to earning religious merit (thawdb}.
Inasmuch as the Koranic verse relates to the disbursement of sadaqahs,
in general, the disbursement of sakdt is treated by the doctors under
the heading of ma$rif al-sadaqdt (beneficiaries of the sadaqahs*) ; the
principles set forth in this chapter apply, therefore, equally well to
other kinds of sadaqah such as the sadaqat al-fifr, or the kaffdrah, and
the vows. We are, however, concerned here with the sakdt only.
(fdmi1, p. 334.) It must be pointed out here that the views concerning
disbursement held by each school apply only to the revenue considered
sakdt revenue by that particular school. This remark holds true of
the other revenues as well.

439

440 MOHAMMEDAN THEORIES OF FINANCE

payer's knowledge; and when they do so, they may legally
be forced to return it, although the zakat payer, as between
him and God, is advised to let it go, provided, however, that
he does not happen to have relations who need the zakat
more. The beneficiaries are in detail as follows :

(i) The "poor" (faqir) are those who do not own a
nisab of property, or who own a nisab of unproductive
property, which is entirely destined for the satisfaction of
first necessities, or of debts. Hence if a student of law
should own books to the value of many nisabs, he is still
poor if he needs those books, but should the latter be owned
by an ignorant person, he is barred from receiving a share
out of the zakat proceeds. What is true of books is also
true of artisan's tools. If, however, a student of law has
two copies of the same book or two houses and needs only
one of them, the extra book or house is taken into account
and if its value amounts to a nisab , its owner is considered
rich. Muhammad Ibn al-Hasan holds that if the rental of
the extra house is used for the food of himself and his
family, the value of the house is not taken into account in
reckoning the nisab.1 According to the Path,2 there are
three different kinds of nisab which must be distinguished
from one another, (i) The nisab of productive property
which is unencumbered with debts; such nisab subjecting
its owner to the obligation of zakat. (2) The nisab which
is not productive or which is encumbered with debts. Such
nisab does not subject to zakat , but bars from participation
in the proceeds of zakat if it is not entirely destined for the
satisfaction of the first necessities. Thus a person owning
several articles of wearing apparel or several household uten-
sils or a horse, is barred from receiving zakat if he does not

1 Majmo', p. 182.

1 P. 202; cf. also Majma', p. 183, 1. i.

EXPENDITURE OF THE ZAKAT TAXES

441

need to use all the articles of wearing apparel or the utensils,
or if he does not need to ride the horse ; otherwise he is poor,
and may receive a share. (3) The nisab which does not
bar from participation in the zakat, but bars from begging.
This nisab consists in the possession of sufficient food for
a single day after covering one's nakedness, or in the ability
to earn one's living even if one should not own a day's
food; or as some say, it consists in the ownership of fifty
dirhams. According to al-Mawardi,1 if a rich person goes
begging and the public inspector knows that he is rich, he
rebukes him, but if he merely infers from the fact that
he has the signs of wealth, he informs him that begging is
not allowed to the rich, but does not rebuke him, for he
may in reality be poor. Finally, if he sees an able-bodied
man begging, he forces him to work and learn a trade, and
if he insists on begging he is punished.2

In computing the nisab to determine whether the owner is
poor, according to some authorities the procedure is exactly
the same as that to determine whether the property should
pay zakat \ for example, if the property consists of sawaim
animals, the nisab is considered complete if the number of
the animals amounts to the minimum number which pays
zakat, irrespective of whether or not their value amounts
to two hundred dirhams. However, the view generally ac-
cepted is that the nisab is considered complete if its value
amounts to two hundred dirhams, whether or not it is com-
plete when computed in kind. According to al-Marginani,
if a person has five camels worth less than two hundred
dirhams, he is " poor " and is given zakat but, on the other
hand, he pays a zakat of one sheep on the camels. This
view is based on a hadith in which the Prophet defined the

1 P. 416.

1 Cf. 'Alantkiriyyah, p. 263.

442 MOHAMMEDAN THEORIES OF FINANCE

rich as the persons owning two hundred dirhams.1 Accord-
ing to the 'Alamktriyyah,2 it is allowed to give the poor a
share from zakat even if they are in good health and are
engaged in business (muktasib). In the Mi1 raj, however,
it is stated that although the zakat may be given to such
persons, it is not proper for them to receive it, because it
does not follow that because the zakat may be disbursed to
a person, that person may properly receive it; just as it is
not proper for a rich person to receive the zakat although
it is allowed to disburse the zakat to him when his state is
not known. The Majma' ? however, remarks that it is
allowed to the persons in question to receive zakat, although,
as is said in the Bahr, it is preferable that they should not
do so.

The Malikite and Shafiite conceptions of the poor are
more flexible. Thus, according to Ibn Rushd,4 Malik says
that the question of deciding whether a person is poor is
left to the judgment of the imam. According to Khalil,5
however, the poor are the persons who lack sufficient means
(kifayah) to provide for necessities for one year, even if
they possess a trade. On the other hand, according to al-
Shafi'i,6 one is rich not only by possessing wealth, but also
by being able-bodied and able to earn a living; and if it is
said that one may become sick, it is replied that one may as
easily lose his wealth. Consequently, the able-bodied poor
who know a trade are not given any assistance unless they
need it in order to make a living. Al-Mawardi 7 says that a

lMajma', p. 182.

J P. 265, 1. 5. 3 P. 180.

4 Ibn Rushd, B., p. 251.

6 Kharashi, p. 117.

6 Umm, p. 64. i *• "

7 P. 211 ; cf. Minhdj, vol. ii, p. 302. .$ *.

EXPENDITURE OF THE ZAKAT TAXES 443

person may be given assistance from zakat so long as he
has not attained the lowest stage of wealthiness (gind) ;
that there are persons who can make a living by turning
over a capital of one single dinar, while others are unable
to subsist on a capital of less than 100 dirhanis. Therefore
the latter must be given more than the former. Finally,
there are able-bodied and strong artisans who can make a
living without any capital, and these are not given assist-
ance even if they do not possess a single dirham. Accord-
ing to the 'Alamkiriyyah, the zakat is given to the learned
poor in preference to the ignorant poor.

(2) The " indigent " (miskln) are those who do not have
anything, and who need to resort to begging in order to make
a living and obtain enough clothing to conceal their naked-
ness. Al-ShaiVi, and according to one report, Abu Hanl-
fah also, define the words " poor " and " indigent " in just
the other way, and on the contrary Abu Yusuf holds that the
terms are identical. The Malikite view agrees with the pre-
valent Hanifite view in considering the " indigent " as the
needier of the two. However, according to the Majma',1
these differences of definition are of no consequence as re-
gards zakat.

(3) The collectors ('amilun) are the persons appointed
by the imam for the collection of the zakat taxes. The term
collector applies to the 'ashirs and the sa'is as well as to
other collecting agents. According to the Shafiites,2 the
word 'amilun, besides applying to the sa'is who collect the
taxes of cattle, applies also to the scribes (katib}, the distrib-
utors (qasim or qassam), the hashirs who bring together
the property owners or the beneficiaries, the 'arifs who in-
form about the beneficiaries, the zakat keepers (hafiz), and

1 P. 180.

' Minhdj, vol. ii, p. 303; Wajis, p. 292; An§iri, p. 395; Mugni, vol.
iii, p. 102.

444 MOHAMMEDAN THEORIES OF FINANCE

the accountants (hasib). There is dispute as to whether
the kayyals who measure off the zakat dues should come
under the class of collectors ('amilun) and be paid out of the
zakat taxes. Judges (qadi) and governors (wali) and the
imam, however, are not included in the class and are not paid
from the zakat for any services they may have rendered in
the collection or distribution of the zakat , because they are
appointed to look after the interests of Moslems at large,
and are paid from the share of masalih if they have not
offered their services freely. According to the Malikites,1
the persons who collect (fabi) and those who distribute
(mufarriq or qasim), as well as the scribes and hashirs, are
paid from the zakat. However, the shepherds (rai),
waterers (saqi), judges, muftis and the like are only paid
from the zakat when, for some reason, they were not paid
from the fa'y (bayt-al-mal) revenue, which is their usual
source of payment. According to al-'Adawi, it is probable
that the shepherds and waterers are not paid from the zakat
because the zakat as a rule is disbursed to its beneficiaries
as soon as it is collected.

There are two views concerning the reward of the col-
lectors. The more generally accepted view is that the col-
lector is paid from the zakat which he has collected an
amount which is on the average sufficient for himself and
his helpers for the time of their outgoing and incoming,
provided that the reward so given him does not exceed the
half of the zakat collected, because a half-and-half division
is the very essence of justice; 2 according to the Muhit, how-
ever, the reward may be as high as three-fourths of the
tithe collected.3 The other view is that the collector is

1 Kharashi, p. 120.

*Majma', p. 180; ' Alamkiriyyah, p. 264; Hiddyah, p. 204; Durar, p.
p. 123.
»/am*v, p. 335.

EXPENDITURE OF THE ZAKAT TAXES

445

given the price of his labor, whatever that price may be,
and this view is shared by al-Quduri.1

According to al-ShafVi,2 the collectors are paid at the cur-
rent rate of wages out of the eighth set apart as the col-
lectors' share. If this share is not sufficient, their wages
are made up from the other shares if there is a surplus
available, otherwise from the share of the Prophet, or ac-
cording to al-Mawardi, from the share of masalih, set apart
from the fa'y and gammah revenues.

Finally, according to the Malikites,3 the wages of the col-
lectors are paid out of the sakat proceeds before anything
else, even if they should absorb the entire sakat proceeds.

The collector may be rich, according to all of the three
schools, because, as the Hanifites argue, his reward is not
meant to be alms, but the price of his services, and since
the collector is going to give his time and effort for the
work of collection he is entitled to compensation. The col-
lector may not, however, be a Hashimite, according to all
of the three schools; this is because the reward given to the
collector is itself, in a way, in the nature of sakat, and the
Hashimites are not entitled to receive sakat', nevertheless,
al-Tahawi holds the opposite view. If, however, reward
comes from other than the proceeds of sakat, according to
the Jami' the collector may then be a Hashimite.

If a person pays his sakat directly to the imam, the col-
lector has no share in it. Similarly if the sakat is lost or
destroyed in the hands of the collector, the latter forfeits
his right to a share.4 The collector may take his share in
advance before it is yet due, although it is preferable that
he should not do so.

1 Jam?, ibid.

8 t/mm, p. 64; cf. Mawardi, p. 211 ; Wajiz, p. 295.

3 Kharashi, p. 120.

* 'Alatnkiriyyah, p. 264.

446 MOHAMMEDAN THEORIES OF FINANCE

(4) The " mukatabs " are the mukatabs of others than
the zakat payer, even if these other persons are rich; pro-
vided they are not Hashimites. This is according to the
Hanifites, who hold that the expression fi 'l-riqab occurring
in the Koran verse cited means fi fakk al-riqab, namely,
that the slaves are aided in completing the price of manu-
mission (badal al-kitabah) in order that they may become
free; and not, as Malik claims, H 'itq al-riqab , namely, that
slaves are bought and set free. The Hanifites take exception
to the view of Malik on two grounds i1 (a) The obligation of
zakat consists in transferring ownership (tamlik) in the
thing given as zakat from the giver to the receiver, but this
does not happen when a slave is bought and set free with
the intention of settling the zakat. (b) The setting free
of a slave establishes for the liberator the relation to the
slave freed, of a patron to a client (wala), but it is a fun-
damental principle of zakat that its giving must not redound
in any benefit for the giver. Neither of these objections,
however, holds true when the mukatab, who has the right
to trade and to receive and give money, is given, from the
zakat funds, a certain sum in order that he may himself
apply it towards the price of manumission. According to
the Mudawwanah? Malik holds the view that when slaves
are bought and set free, the rights of patron accrue to the
entire Moslem community.

(5) The "debtors" (garimun) are those who do not
own a nisab over and above their debts and first necessities ;
thus, it is agreed by all that a person possessing a single
month's food worth a full nisab, over and above his debts,
is still entitled to a share. Some say that the word garimun

1 Kasani, p. 45; Mabsut, part iii, p. 9; cf. Minhdj, vol. ii, p. 304;
Kharashi, p. 121.

2 P. 59.

EXPENDITURE OF THE ZAKAT TAXES 447

occurring in the verse means the creditor who can not col-
lect his claims from his debtors.1 According to the Majnia',
in giving assistance from the zakat the debtors are to be pre-
ferred to the poor.

According to the Malikites,2 debtors are paid from zak&t
only for debts for which a debtor may be put in prison,
namely, debts to fellow-men (adami), provided, however,
the debtors prove their good faith by applying towards the
settlement of their debts such cash as they may have, and
by applying the saving they can effect through living in
more modest quarters ; and, furthermore, provided the debts
were not incurred for unlawful ends such as drinking wine
or gambling.

Finally, according to the Shafiites,8 the word garim
(debtor) here means not only persons who, incurring debts
for lawful personal reasons, are aided only when they
cannot settle the debts by their own means, but also persons
who incurred debts in the public interest, by becoming
surety (hamalah) or by composing feuds and differences
(islah dJwt al-bayn). These latter are paid from the zakal
even if they are rich. According to the J&mi', al-Zahidi
considers the word " debtors " in this connection to mean
those who incurred debts for composing feuds.

(6) "The way of God" (sabll allah). According to
Abu Yusuf and a report from Muhammad Ibn al-Hasan,
the expression " the way of God " means persons who by
reason of poverty have been unable to join the army of the
Moslems for the purpose of holy war. This is the view
generally accepted. Such persons deserve a share even
when they can engage in business, because if they were re-

1 Jdmf, p. 336.

1 Kharashi, p. 122.

8 Umm, p. 61 ; Wajls, p. 293 ; Minhdj, vol. ii, p. 304.

448 MOHAMMEDAN THEORIES OF FINANCE

fused a share they would stay away from the war. Accord-
ing to another report from Muhammad, the expression
means pilgrims who, by reason of poverty, have been in-
capacitated for the completion of their pilgrimage. The
ground for the view held in the second report is that a
person who was given a camel from this share, was ordered
by the Prophet to transport the pilgrims on his camel. The
ground of the first view is that although the expression " the
way of God " may apply to every act of devotion, when
there is no indication in the context, or otherwise, in favor
of a specific act of devotion, it applies to the persons who
fight the holy war.1 According to the J&rni', some say that
the expression means the poor persons who committed the
Koran to memory; still others say that it means the poor
students. According to the Path, however, whatever the
meaning of the expression may be, the unanimous opinion
is that with the exception of collectors, people of all the
classes mentioned, if they are poor, receive a share, and
the pilgrims as well.

According to the Malikites,3 the expression here means
the persons who engage in holy war (jihad), even if they
are rich. However, according to the prevalent view, also
judges, jurisconsults, prayer-callers (mu'adh-dhin), and
other functionaries whose services redound to the benefit
of all Moslems are paid from the sakat, provided they do
not draw a pension (ratib) from the public treasury. In
one Malikite view of the matter, the above in reality come
within the scope of the expression " the way of God ", for
they contribute to " the maintenance of Islam, its reputa-
tion and exaltation (ta'zim) and to the easing of hearts in
that respect ".

1 Hiddyah, p. 205 ; Jdmi', p. 337.
'Kharashi, p. 122.

EXPENDITURE OF THE ZAKAT TAXES 449

However, according to al-Shafi'i and his followers,1 the
expression means the persons who do not draw a pen-
sion from the fa'y revenue, and yet volunteer to join the
holy war, especially such of them as come from the district
where the zakat was collected.2 Such persons are given a
share even if they are rich.

(7) The wayfarers (ibn al-sabll) are the strangers cut
off from their property, and, by extension, all persons who
have been cut off from their possessions, even if they
should be in their own cities, such as the resident (muqlm)
who has property away from his home, and the creditor,
whose debtor admits his debt but cannot settle it because
he is in financial straits. These people do not receive more
than they need, and it is preferable that they should borrow
the money they need, if they can do so. Like the poor
person who becomes rich, the wayfarer, too, is not obliged
to bestow as alms the money that is left in his possession
from the zakat when he recovers his property.3

According to the Shafiites,4 wayfarers are given enough
to complete their journey, even if they have not as yet
started on it, provided, however, that the journey is made
for a lawful end. According to the Malikites,5 wayfarers
who have property at home are aided only in case they fail
to obtain a loan.

(8) The people called mu'allafah qulubuhum, literally,
people whose hearts have been conciliated. These people
were of three classes. One class included those to whom the

1 Umtn, pp. 62, 73; Minhaj, vol. ii, p. 304; Wajiz, p. 294.

1 According to the Shafiites, as we shall later see more in detail, the
fact of being a stipendiary of the diwdn bars from participation in the
sakdt, no matter what class of beneficiary one belongs in.

8 Path, p. 205.

4 Umm, pp. 62, 73; Minhdj, vol. ii, p. 305; Wajls, p. 294.

6 Kharashi, p. 123.

450 MOHAMMEDAN THEORIES OF FINANCE

Prophet used to give from the proceeds of zakat in order
to draw them into Islam. Another class consisted of those
who, although already converted to Islam, were weak in their
faith, and to whom the Prophet gave a share from the zakat
in order to strengthen them in the Faith. A third class
were those to whom the Prophet gave a share in order to
deter them from doing harm. These people were leaders
of the Quraysh tribe, and other Arab chiefs. When the Pro-
phet died, these people came to Abu Bakr and asked him to
renew the document concerning their shares in the zakat,
and he granted their request. Then they came to Omar and
informed him of it, whereupon Omar took the document
from their hands and tore it up, saying that the Prophet gave
them a share in order to draw them into Islam, but that
meanwhile God had made His religion to prosper and the
only alternative that remained for them was Islam or the
sword. Upon this they returned to the calif Abu Bakr and
told him of what Omar had done, saying: " Is it you who
is the calif, or he? " Abu Bakr replied : " He, if God will ",
and so Abu Bakr did not blame Omar for what he had
done; when the other Companions learned of the hap-
penings, they all approved of them, and in this way an ijmcf
was reached on the matter. In view of this ijmtf, and be-
cause Islam now is strong and no longer needs resort to
such means for protection, the Hanifites hold that this share
has lapsed since the Prophet's death.

According to al-Shafi'i and his followers,1 it is not al-
lowable to disburse the zakat to an unbeliever in order to
draw him into Islam. It is, however, permissible to disburse
it to powerful Moslems if it is expected that this will result
in others of their tribe becoming Moslems. The zakat may

1 Umnt, pp. 64, 73 ; Wajiz, p. 293 ; Minhdj, vol. ii, p. 303 ; cf. Kasani,
p. 45-

EXPENDITURE OF THE ZAKAT TAXES 45 j

ilso be disbursed in order to confirm Moslems in their faith,
or to enlist the military assistance of a Moslem people
against those infidels or Moslems who refuse (mani') to
pay zakat, who, being near that people, can be best
brought to submission by them. Al-Mawardi l says that
although it is not allowed to give the infidels from the zakat
in order to draw them into Islam, it is lawful to give them
funds for that purpose from the fa'y, from the share of
wasalih. Malik says that these people were given a share
only when Islam was still weak, and that in his own time
Islam was strong and did not stand in need of financial
backing, as it did in the days of the Prophet when the Mos-
lems were few and their enemies many and strong. Malik
arrived at this view by using his method of istislah* Ac-
cording to later Malikites,8 the divine prescription concern-
ing this share is still in force and consequently zakat may
be disbursed to unbelievers provided it is known that this
will lead to their embracing Islam.

The controversy on this subject has largely turned on the
question whether it was possible to abrogate a point of law
established by the Koran and continued in force until the
death of the Prophet by means of an ijma' after his death.
Those who believed in the abrogation of the Koran and the
sunnah by an ijma' after the Prophet's death, saw no diffi-
culty in the matter. But those who believed the contrary,
had to tax their resources to find a justification for it.
Thus some say that it is not a case of abrogation by ijma'.
but one of lapse of a value on account of the termination
of its cause. One Hanifite doctor expresses the view that
in the time of the Prophet the share was given in order to

1 P. 212.

* Ibn Rushd, B., p. 251 ; cf. Mudawwanah, p. 57.

s Kharashi, p. 121.

452 MOHAMMEDAN THEORIES OF FINANCE

strengthen Islam; but that now Islam is strong and the
same object is served by not giving any share. This view
is approved by the 'limy ah.*

According to the Shafiites,2 if a person claims to be a
beneficiary of zakat on the ground that he is poor or in-
digent, he is believed and in case of suspicion is sworn
to the truth of his statements. According to some doctors,
he is always sworn. If, however, it is known that he had
property although he claims that it was destroyed, he has
to prove it. The same applies if he claims that he has a
family to take care of. Again, if a person claims a share
in the zakat on the ground that he is a wayfarer or a sol-
dier he is believed without oath; he is also believed if he
claims a share on the ground of being weak in faith; but
if he claims that he is a mukatab or a debtor, he is required
to produce evidence to that effect, since this can be done in
these two cases. If the fact is generally known (mustafid),
or if the creditor confirms the claim of the debtor, it is as
if proved by evidence.

According to the Malikites,3 persons claiming to be poor
or indigent are believed without oath, unless there is reason
for suspecting the contrary, in which case they are required
to produce evidence. If a person claims an additional share
on the ground of having a family, he is believed unless he
is a resident of the place where the zakat is being disbursed,
for in such case the matter is inquired into. If a person
is known to have been well-to-do he is required to show
that he has lost his wealth. A person, however, is believed,
if he claims bad business. Debtors, must prove their inabil-
ity to pay, with respect to debts incurred for other than

1 P. 201 ; cf. Path, and Kifdyah, ibid.
* Wajlz, p. 294 ; Minhdj, vol. ii, p. 305.
"Kharashi, 'Adawi, p. 116.

EXPENDITURE OF THE ZAKAT TAXES

453

food only, because it is generally hard to prove the amount
of food consumed. Al-'Adawi wonders if, when evidence
must be produced, one witness would be sufficient, or
whether, as in the case of civil procedure, there should al-
ways be at least two. On the whole, he seems to favor a
more lenient attitude than would be warranted in strictly
civil matters.

The Hanifites do not discuss this matter, except in what
they say concerning the disbursement of zakat by the
owners themselves; in which case, as we saw, they resort to
intuition. As regards the disbursement of zakat by the
state officials, they evidently intend that the general prin-
ciples respecting the verification of assertions (da'wa) shall
be applied.

The method of distribution of the zakat among the var-
ious beneficiaries has been a matter of difference of opin-
ion. The Hanifites l claim that the zakat may be disbursed
to all the classes together, excepting that of the mu'allafah
whose claims have lapsed ; or to any one of them exclusively,
even if it consists in one single person. Al-Shafi'i, on the
contrary, expresses the view that the zakat may not be dis-
bursed to one or few classes when there are more of them
present, and that the share of each class is disbursed prefer-
ably among all its present members, or at least three of
them; it being unlawful to disburse to fewer, when there are
three beneficiaries present; otherwise the collector or the
owner, if it was he who disbursed the zakat, has to make
good to the third beneficiary his share.2 According to the
later Shafiites, if the zakat proceeds are sufficient for all
the beneficiaries of a class, and their number is easily de-
terminable (munhasir), each is given a share, otherwise

1 Majma', p. 181 ; Jam?, p. 337 ; Hiddyah, p. 205.
* Utnnt, pp. 69, 76-7 ; Mabsuf, part iii, p. 10.

454 MOHAMMEDAN THEORIES OF FINANCE

only three are given a share. This rule does not apply to
the collectors who may be fewer than three.1 Finally, ac-
cording to Malik and his followers,2 as in the case of the
Hanifites, the zakat need not be disbursed to all the classes
or all the individual beneficiaries present, but is disbursed
to the neediest ones, even if they should be in other dis-
tricts.

Al-Shafi'i's ground is that the Arabic preposition " for "
(li) occurring in the verse establishes for the beneficiaries a
right on the property due as zdk&t, and, since the names of
the various classes are construed in the plural, there may
not be fewer than three persons in each class ; three being the
minimum number for which the plural is used. It is true
that the words " poor ", " indigent ", etc., are defined with
the article and the article indicates the entire genus, but
since such a meaning cannot have been intended here, they
are construed as mere plurals and the articles are ignored.
Al-Shafi'i, in support of his construction, invokes also the
analogy of a will, for it is admitted on both sides that if a
person wills a sum of money to a number of classes they
are all entitled to a share.3

On the Hanifite side, al-Sarakhsi invokes the precedent
of Omar, and with respect to the analogy of a will, remarks
that it pertains to a relation of man to man, where import-
ance attaches to the expression (lafz) and not the meaning
(ma'na) because human orders (awdmir al-'ibad), unlike
divine commandments, may lack a commendable wisdom.
The Hidayah says that the preposition " for " (li) merely
indicates who the beneficiaries are, but it does not establish

1 Minhdj, vol. ii, p. 308 ; An§ari, p. 402 ; Wajiz, p. 295 ; Mawardi, p.
210; al-Fatdwa al-Kubra, vol. ii, pp. 37-8.

' Mudaruwanah, p. 55; Ibn Rushd, B., p. 250; Kharashi, p. 124; Dardlr,
p. 126.

1 Mabstit, part iii, p. 10.

EXPENDITURE OF THE ZAKAT TAXES

455

a valid title (istihqaq) to the sakat in their favor, since the
sakat is in reality only a right of God, and the classes men-
tioned are beneficiaries merely by reason of their poverty.
Furthermore, the Path x observes that the preposition here
only means that the different classes are entitled to the pro-
ceeds of sakat as a whole, not that necessarily every individ-
ual sakat must be distributed among all the individual bene-
ficiaries, an operation which is, besides, impossible- More-
over, it is a rule of Arabic grammar, that when two plurals
are set against one another, as in the phrase, " the people
mounted the animals ", distribution is meant, namely, that
each person mounted one animal; similarly in the case of
sakat, each sakat is given to one or a few beneficiaries, but
not to all the beneficiaries. The Path adds that this con-
struction holds true even if the preposition "for" (li) means
what al-Shafi'i claims it to mean, that is, a title on the sakat
in favor of the beneficiaries. Sadr-al-shari'ah remarks
that the article before the words " poor ", etc., here may
not be construed to mean certain definite (al-'ahd) poor,
since there is no evidence in the context to bear this out,
neither may it mean the entire genus of poor, since this
would require that all the sakat of the world should be
given to all the poor of the world. Therefore, as is other-
wise stated in the Bahr? the defined plural here of necessity
and by way of metaphor means the genus at large, and may
apply to a single individual of the genus, just as an oath
not to buy the slaves applies to a single slave, and renders
him a perjurer if he buys a single slave. The author of the
Fara'id, however, takes exception to this and says that the
article before the plural need not necessarily mean a literal
universality (istigraq haqlqj) since it may also mean a cus-
tomary ((nrfi) universality, as for example, in the phrase,

1 P. 206. 'P. 260.

456 MOHAMMEDAN THEORIES OF FINANCE

" the king called together the artists " ; where simply the
artists of the city or the outlying districts, but not of the
entire world, are meant.1

The Malikite view on this matter is to the same effect as
the Hanifite.2

The Shafiite method of distribution of the proceeds of
the zakat taxes, as summarized by al-Mawardi,4 is briefly
as follows : When the proceeds have been divided among
the eight classes, and each has received its sufficiency, they
cease to be beneficiaries of zakat, and may no longer claim
a share. If, on the other hand, they have not received their
sufficiencies, the balance is made up from future proceeds.
If the shares of all the classes are more than sufficient for
their needs, the surplus is disbursed to the beneficiaries of
the nearest city. If the share of some classes is insufficient
and of others is more than sufficient, the surplus of the
latter is disbursed to make up the shortage of the former
classes. If all the eight classes are not present, then the
entire zakat is distributed among those present, even if it
be one single class; and the shares of the absent are not
carried to them, except in the case of the share of " the
way of God " which belongs to the fighters who normally
reside away from their homes in the frontier cities.

According to the Hanifites, the giving of zakat must
result in the transfer of ownership (tamllk) in the thing
given as zakat from the giver to the receiver. This is con-
sidered to be the formal cause (rukn) of zakat, in other
words, the zakat is not supposed to have been given if this
requirement is not met. The reason for this requirement
is that the preposition "for" (li) which occurs in the Koran

1 Majma', p. 181.
'Kharashi, p. 116.
1 P. 213.

EXPENDITURE OF THE ZAKAT TAXES 457

verse respecting the beneficiaries, indicates that the sakat,
when it is given, becomes the property of the person to
whom it was given. Consequently, the zakat may not be
appropriated for impersonal purposes, such as the building
of mosques, bridges, repairing of roads, draining of rivers,
etc.1 Likewise, the zakat is not disbursed for fitting out the
dead for burial or for paying their debts. Neither is it al-
lowable to give the zakat to the insane or the undiscerning
minor (gayr murahiq), unless it be given to his guardian,
such as the father; but it may be given to the minor who
has reached the age of discernment. For the same reason,
a person may not dispose of his zakat in settlement of the
price of a slave he has bought, in order to set him free.
According to Abu Yusuf, he may feed (ibahah) the people
of his household, intending this for the settlement of his
zakat debt, but according to Muhammad Ibn al-Hasan he
may not do so; however, the accepted view is that of Abu
Yusuf.

Malik agrees with the Hanifites that the zakat may not
be disbursed for the fitting out of the dead for burial or for
the building of mosques, on the ground that zakat is not
intended for the dead but for the living, such as the poor.2
What is true of mosques is also true of the construction of
bridges, the payment of the salaries of judges and of iniams,
etc., that is, purposes of public utility (masalih), because
these are not specified in the Koran verse cited. However,
the salaries of the functionaries mentioned may be paid from
the sakat in case they have not been paid from the public
treasury. We already saw that one Malikite view brought
such persons within the scope of the expression " the way

1 There is, however, a way of getting around this difficulty, as ex-
plained in the section on cunning, under Collection.
1 Mu daurwanah, p. 59; cf. Kharashi, pp. 120, 123.

MOHAMMEDAN THEORIES OF FINANCE

of God ". According to the Shafiites, the zakat may not
be disbursed to others than those specified in the verse.

Similarly for want of complete transfer of ownership
(tamlik*), it is not allowed to give the zakat in a way that
may result in some benefit for the giver. It is not therefore
lawful to give the zakat to one's ancestors and descend-
ants in direct line, no matter how far up or down, whether
legitimate or not, or to one's wife, even if she is divorced
and in her waiting term (mu'taddah) ; and further, in Abu
Hani fan's opinion, the wife may not give it to her hus-
band. However, Abu Yusuf and Muhammad allow it in
the last contingency. Neither may one give his zakat to
his slaves (mukatab, mudabbar, or umm walad), even if
they should have been partly set free. According to Abu
Yusuf and Muhammad, however, one may give it to his
slave if partly set free, because, in their opinion, the setting
free of a slave does not admit of division, and a slave partly
set free is considered entirely free.

It is not lawful to give the zakat to the dhimmis, be-
cause the hadith : " Take it from their rich and give it to
their poor ", refers only to the poor of the Moslems.1 Simi-
larly it is not given to the renegade, nor is it proper either
that it should be given to those of the innovators (mubtadi')
who have incurred unbelief. Zufar expressed the opinion
that the beneficiary need not be a Moslem. It is, however,
permissible to give to the dhimmis other than zakat, such as
vows, kaffarah, etc-, although, in one report, Abu Yusuf,
would not allow this. The harbis, however, may not receive
from any one of the various kinds of sadaqahs.

According to the Shafiites and the Malikites,2 zakat funds

1 This is a case of supplementing the Koran on the basis of a report
of the ntashhiir type.

* Minhdj, vol. ii, p. 305; Wajiz, p. 294; Kharashi, p. 117.

EXPENDITURE OF THE ZAKAT TAXES 459

may not be given to unbelievers. The Malikites, however,
make an exception as regards the class of mu'allafah and
the spies.

Likewise it is not allowed to disburse the zakat to the
rich, because it can clearly be seen from the respective verse
that, excepting the collectors and the mu'allafah, the cause
for the above-named classes being beneficiaries is their pov-
erty, and because there are hadiths from the Prophet to this
effect.1

According to the Bada'i' , in some fatwa collections the
opinion has been expressed that students of law such as
the judges and the muftis, may receive the zakat even if
they are rich, provided that they exert themselves in ac-
quiring and transmitting knowledge, since by so doing they
become unable to engage in business. Ibn 'Abidin says that
he saw a similar view expressed in the Jami' al-Fatawa,
where it is said that, according to the Mabsut, it is not al-
lowed to disburse the zakat to a person who owns a nisab
excepting to the students, the fighters (gazi), and the per-
sons cut off (munqati') from their resources, because the
Prophet said : " It is allowed to disburse the zakat to the
student of law (film), even if he possesses sufficient sub-
sistence for forty years." a

According to the Shafiites, the fighters (gazi) , the mu'al-
lafah, the collectors, and the debtors who have incurred
debts for public purposes are not barred from participation
in the zakat for being rich. However, no beneficiary of any
class is given zakat if he is also a stipendiary of the diwan.*
According to the Malikites, finally, the mu'allafah, the col-
lectors, and the fighters are not barred from zakat for being
rich.

1 Path, p. 209.

* Minhah, p. 260; cf. 'Adawi, p. 120.

8 Wajiz, p. 292.

45o MOHAMMEDAN THEORIES OF FINANCE

Likewise it is not allowed to give zakat to the slave
('abd) of a rich person, even if he is of the mudabbar or
umm walad type, because the property of the slave belongs
to the master. According to Abu Hanifah it is also lawful
to give the zakat to the slave, if he is indebted for all his
possessions and his own value. Abu Hanifah's two dis-
ciples hold the contrary view. The zakat, however, may
be given to the mukatab and the slave who was permitted
to trade (ma'dhun).

Neither is the zakat given to the infants of a rich person.
However, according to a Zahir-al-riwayah report, the zakat
may be given to his adult children and wife if they are
poor, even though the children's subsistence comes from
the father, because it is not customary to consider the child
rich merely because the father is rich. Likewise it is lawful
to give the zakat to the father of a rich person or the chil-
dren of a rich woman.4

According to both the Shafiites and the Malikites,1 per-
sons, like the wife or children, whose support legally is upon
others, may not be given zakat.

Likewise it is not allowed to give the zakat to certain
members of the Hashim family, namely, those who helped
the Prophet in spreading Islam, Hashim being the grand-
father of the Prophet. This is based on many hadlths of
which the following one was uttered by the Prophet when
he refused to accept the sadaqah offered him. It is as fol-
lows : " Verily the sadaqah does not become the family of
Mohammed, because it is the slops (literally, washwater)
of the people." 2 Another hadlth is the following: a " Oh,
people of Hashim, God has not deemed fit for you the wash-

1 Durr, p. 145.

1 Minhdj, p. 303 ; Wajiz, p. 292 ; Kharashi, p. 125.

8 Path, p. 212. * Kasani, p. 49.

EXPENDITURE OF THE ZAKAT TAXES 461

water of the people, but has given you as compensation for
it one-fifth of the fifth of the spoils." However, they may
be given the fwtf; namely, what is given over and above the
amount prescribed as zakat — or some other ivajib obligation,
such as the sadaqah al-fitr. In other words, if one should
give them property intending it for the zakat, the property
given is considered as a supererogatory offering, and hence
the zakat debt is not discharged. According to the Majma ,
Abu Hanifah allowed the disbursement of zakat to these
people. In the al-Athar, however, it is stated that Abu
Hanifah held two contradictory views on the matter, but
that the view which allows the disbursement is preferred,
on the ground that the prohibition of disbursement was
limited to the Prophet's time. The Hashimites, in one ver-
sion, may pay zakat to one another. The clients (mazvla)
of the Hashimites are treated like themselves, because the
Prophet said: "The clients of a prophet are like them."

In paying the zakat to the beneficiaries, the proper thing
is to pay only enough to relieve them from the necessity
of begging on that day ; according to the Majma', however,
from the necessity of begging absolutely (mutlaqa), because
the object in giving the zakat is to remove the need for beg-
ging. It is therefore an abominable practice to give a poor
person two hundred dirhams or more, unless he has a family,
or is in debt ; in the latter case it is allowed to give the entire
amount of the debt plus an amount less than a nisab ; and
in the former case more than one nisab, provided the
share corresponding to each member of the family falls
short of a nisab. If the poor is given a full nisab, notwith-
standing that he is not in debt or has not a family to sup-
port, according to al-Sarakhsi, the zakat debt is nevertheless
discharged. Zufar says that it is not. Finally, according

1 Cf. Minhdj, vol. ii, p. 305; Wajiz, p. 294; Kharashi, p. 120.

462 MOHAMMEDAN THEORIES OF FINANCE

to Abu Yusuf, there is no harm in giving two hundred, but
it is abominable to give more than two hundred dirhams.
Zufar's argument is that when a poor person is given two
hundred dirhams he comes under the description of a rich
man during the act of receiving the money and therefore
the zakat is not discharged in that it has been paid to a rich
person. Al-Sarakhsi replies that the state of wealthiness
depends on ownership but the ownership of the money given
accrues to the poor person only after he has received it, and
consequently he is poor while he is yet receiving the money,
and therefore the zakat debt is discharged. However, be-
cause here the state of wealthiness follows upon that of
poverty so very closely, it is an abominable practice to pay
two hundred dirhams, although legally the zakctt is dis-
charged, just as it is abominable to pray on a clean spot
close to which there is filth, although the prayer is legally
valid. Abu Yusuf's ground is that when two hundred
dirhams are given to a poor person, a small part of them
is already applied (mustahaqq) to his needs; as the part
which remains available is less than two hundred, he, there-
fore, is not rich.1

According to the Minhaj? the poor and indigent are
never given more than a year's subsistence. But, according
to al-Shafi'i and the majority of his followers, they are
given enough for the rest of their probable lives and the
amount given is applied to the purchase of real estate, its
income to be used by the poor.

It is abominable to transfer the zakat of a property
after the lapse of a year to another town, even if that town
is the home of the zakat payer, since in the settlement of
zakat the location of the property, and not the residence of

1 Mabstit, part iii, p. 13.

J Vol. ii, p. 306; cf. Kharashi, p. 119.

EXPENDITURE OF THE ZAKAT TAXES 463

the zakat payer, is taken into account. However, it is al-
lowable to transfer it if the poor of the town to which the
sakat was transferred are godlier or more useful to Islam
in that they are abler in learning and teaching the sharfah,
or if the zakat payer has transferred the zakat to his rela-
tions in that town, or, finally, if the poor of the second town
are needier than those of the original. It is said that the
best way to settle one's zakat is to pay it first to one's
brothers or sisters, then to their children and children's
children forever, then to one's paternal uncles, then to their
children and children's children forever, then to maternal
uncles, then to other relations through females (dhawu al-
arham), then to neighbors, then to the beneficiaries of one's
own district, finally to those of one's own town. Accord-
ing to al-Mawardi,1 if the property owner brings his rela-
tions before the collector so that he may disburse his zakat
to them, the collector does so, if his zakat has not already
been mixed with the zakat of others. If, however, it has
been mixed with the zakat of others, then the relations
are not entitled to it more than others but the collector
nevertheless gives them a share from it, because to a part
of it they are more entitled than others. Al-Mawardi
says that the transfer of zakat to another town is not al-
lowed unless there are no beneficiaries in the first town. If,
however, the zakat is transferred while there are bene-
ficiaries in the original town, then, in one view, the debts
of the zakat payers remain undischarged, but in the other
view, which is advanced by Abu Hanifah, they are dis-
charged.2

Finally, according to Malik and his followers,* the zakat

1 P. 214.

2 Mawardi, p. 213; cf. Untnt, p. 67; Wajlz, p. 295; Minhdj, vol. ii, p.

1 ' /••£ C«J /»•*/» r\*\ ->-9c'_n

— 9 rw — -\j i "/•

300; cf. supra, pp. 335-9.
1 Mudawwanah, p. 46; Kharashi, p. 126.

464 MOHAMMEDAN THEORIES OF FINANCE

is distributed among the beneficiaries of the town and its
outskirts (qurb),1 i. e., the town where the zakat was col-
lected, unless it be that the zakat was collected from gold
and silver and articles of trade. In such case the zakat is
distributed in the town where the owner is. If there is an
available surplus it may be transferred to another town,
preferably a near one. It is even allowed to transfer the
greater part of the zakat of a town to another town if the
people of the latter town are needier. Malik allows a per-
son to settle the zakat of property located in Egypt (Misr)
to the poor of Medina.2

1 The word qurb (vicinity) is technically defined as the distance from
the inhabited part of a town within which one may not shorten (qasr)
one's prayer on the ground of having set out on a journey. This dis-
tance is known as masdfat al-qasr. The inhabited gardens of a city
are included within this distance (Kharashi, vol. i, p. 411; 'Adawi, p.
127).

J The Hanifite doctors do not state if the rules of this chapter apply
in their entirety to all disbursements of sakdt, whether made by the
zakdt payers directly to the beneficiaries or whether made by the state
collector. There is no doubt that certain of those rules cannot very
well apply in the last case, for instance, the rule concerning the pro-
hibition of paying the sakdt to one's father or son, or slave, etc. The
wording of the texts often suggests whether the rule is meant for both
cases or for the case of disbursement by the sakdt payer himself.
Thus as against the impersonal "the sakdt is not disbursed (la tudfa"}
for building mosques. . . ." there is also used the personal form :
" the sakdt payer does not disburse the sakdt to his ancestry." Except-
ing, however, those cases where, in the nature of things, the rule must
be intended for the case of disbursement by the sakdt payer himself, in
general the rules set forth in this chapter apply equally well to both
cases, since according to the Mohammedan law the public collectors act
only as the agents (nd'ib) of the zakdt payers. This is also borne out
by a statement in the ' Alamkiriyyah (p. 268) which implies that the
rules in question apply also in case the sakdt is disbursed by the col-
lector after its collection. (Cf. also Kharashi, p. 124, 1. 6.)

CHAPTER XI
EXPENDITURE OF THE SECULAR REVENUE

SECTION I

The Booty Revenue l

THE expenditure of the booty revenue2 is based on this
verse of the Koran : 3 " And know ye, that whatever thing
you have taken as booty, a fifth part of it belongeth to (/»)
God, and to the Prophet, and to the near of kin (dhu al-
qurba), and to the orphans and to the indigent (miskin),
and to the wayfarer."

It is stated in the Mabsilt, that, according to Ibn 'Abbas,
during the life of the Prophet the fifth of the spoils was
divided into five shares, namely, one share to God and His
Prophet, one to the relations of the Prophet (dhazvu al-
qiirba), one to the orphans, one to the indigent, and finally

*As the four-fifths of the booty revenue accruing to individual mem-
bers of the community, — such as the soldiers (in the case of spoils), or
the person who extracted the mine, or found the treasure-trove, — has
been already treated in the respective sections, in this section we will
consider only the part, namely, the one-fifth, accruing to the state.
For the disposal of the four-fifths, see supra, pp. 409-413, 413-421.
Maima', p. 504; Mabsut, vol. x, p. 8; Hiddyah, vol. v, p. 243; Wajis,
pp. 288, 290; Umm, vol. iv, pp. 71, 77; Minhdj, vol. ii, pp. 293, 209;
Mawardi, p. 241; Muzani, vol. iii, p. 192; cf. Ibn Rushd, 5., p. 315.

2 Although, following the usage of the Hanifites, reference in this
section will be to the expenditure of the fifth of spoils alone, the reader
should bear in mind that what is true of the fifth of spoils is true of
the fifth of booty revenue in general.

* Chao. 8, verse 42.

465

466 MOHAMMEDAN THEORIES OF FINANCE

one share to the wayfarers. Later, after the Prophet's death,
the calif Abu Bakr divided it into three shares, namely, the
parts for orphans, the indigent and the wayfarers. So did
the califs Omar, 'Uthman, and 'Ali, none of the Companions
objecting to this practice. Abu 'l-'Aliyah, on the other
hand, said that besides the above-named five shares there
should also be set apart a share for God to be spent for the
Ka'bah, if the division of the spoils happens near it, or for
the mosque of a town if the division takes place near it,
because these places are connected with God. Al-Sarakhsi
objects to this construction, saying that the expression " to
God " occurring in the verse is not to be taken in its literal
sense, since it is merely meant to be an act of devotion to
open a sentence with the name of God.

As regards the share of the Prophet, according to al-
Sarakhsi, it lapsed after the Prophet's death. Al-Shafi'i *
thinks that this share after the death of the Prophet should
go to the imam, inasmuch as the Prophet took this share
in his lifetime in order to use it as gifts for delegations
and deputations.2 Indeed the Prophet said : " It is not
allowed for me to take a share from your spoils except the
fifth which is again returned to you." The imam in this
respect is exactly like the Prophet, and therefore he must
take this share. The Hanifites reply that the righteous
califs did not appropriate this share for themselves and
moreover this share belonged to the Prophet by virtue of
his being a Prophet, which is not true of the calif. Then,
too, when the Companions came together to give the calif

1 According to the Malikites (Kharashi, p. 427; Ibn Rushd, B., p. 315;
Mudawwanah, vol. iii, p. 26), the fifth of the spoils is disbursed like
the fa'y revenue, as will be explained in the next section.

2 It is stated in the Unttn (vol. iv, p. 72, 1. i) that Al-Shafi'i would
prefer to have this share disbursed by the imam for the strengthening
of Islam, e. g. for fortifications, arms, etc.

EXPENDITURE OF THE SECULAR REVENUE 467

Abu Bakr his stipend, they did not give it from this share.
Finally there is no reason why the calif should take the
place of the Prophet as regards the fifth of the fifth (i. e.,
the Prophet's share) when it is a fact that he does not, as
regards the safis, namely, choice spoils like swords, horses,
slaves, etc., which the. Prophet chose out of the spoils for
his own special use.

Finally as regards the so-called share of the Relations,
namely, the descendants of the families of Hashim and al-
Muttalib, according to al-Sarakhsi, this share has been
abolished after the Prophet's death. Al-Shafi'i, on the con-
trary, says that the relations of the Prophet are gathered
together from the corners of the earth and their share is
divided among them. Al-Karkhi says that this share lapsed
after the Prophet's death only as regards the rich Relations.
Al-Tahawi, on the other hand, maintains that the share lapsed
as regards both the rich and the poor Relations. Abu Bakr
al-Razi, finally, holds that the Relations were not entitled to
this share by virtue of their relationship, but that the
Prophet gave them this share in consideration of the assist-
ance (nusrah) they rendered him, this last view being ap-
proved by al-Sarakhsi.

Al-Shafi'i's ground is that the preposition " to " (/»") oc-
curring in the verse cited establishes ownership, and as the
word "relation" does not imply any economic incompetency,
the poor and rich are treated alike. It is, however, different
with the orphans, for the word orphan implies poverty, and
therefore only the poor of the orphans are entitled to a
share. Moreover it is a fact that the Prophet gave the
Relations a share, and inasmuch as there can be no abroga-
tion (naskh) after the Prophet's death, the share stands
valid. Finally, the Hanifite contention that the lapse of the
share is based on an ijma' of the Companions is not true,
because there is a hadith from Abu Ja'far Muhammad Ibn

468 MOHAMMEDAN THEORIES OF FINANCE

'All who said : " The opinion of 'Ali concerning the fifth
was like that of his family but he disliked to oppose Abu
Bakr and Omar ", and evidently there can be no ijma'
while the Family of the Prophet dissent.

Al=Sarakhsi replies that 'AH agreed with the rest simply
because he saw that the truth was on their side, for it is
known that he opposed them on many occasions, and that he
would have done so in this case also if the right had been
on the other side, because 'Ali was a mujtahid and a mujta-
hid is not allowed to abandon his own opinion in favor of
another's opinion merely because he is ashamed of him.
There is, besides, an unconfirmed (shadhdh) hadith accord-
ing to which the Prophet said that the share of the Rela-
tions was to be given during his lifetime only. Finally, there
is a hadith according to which the Prophet, referring to the
Relations, said : " We have always been like this " ; pointing
out his fingers which were knit together. This hadith shows
that the Prophet granted them a share because of the assist-
ance which they gave him, not because of their relationship,
for if that had been the case, the Prophet would have
given a share to his other relations as well, and not to the
descendants of Hashim and Al-Muttalib alone; it is well to
remember that 'Abd Manaf , the originator of the family, be-
sides these two sons had two more, Nawfal and 'Abd Shams.
Indeed the Prophet himself explained the matter, saying
that he gave a share on the ground of assistance in the way
of intimate association, not in the way of fighting; no share
was given to 'Uthman, a descendant of 'Abd Shams, and yet
'Uthman fought for the Prophet.1

To sum up the discussion, according to the accepted
Hanifite view, the booty revenue is divided into three
shares, one to the orphans, one to the indigent and one to

1 Mabsiit, part x, pp. 9-14; Umm, vol. iv, pp. 72-77.

EXPENDITURE OF THE SECULAR REVENUE 469

the wayfarers; the shares of the Prophet and the Relations
having lapsed after the Prophet's death. The Relations,
however, are entitled to a share in so far as they belong in
one of the above classes, and in that case they are given
precedence over the rest.1

On the other hand, the Shafiite view is that the fifth is
divided into five shares, namely, the Prophet's, the Rela-
tions', the orphans', the indigents', and the wayfarers', and
that the Prophet's share after his death is disbursed in the
general interest (inasalih) of Moslems; for instance, for
buying the provisions of the army, for the building of forts,
bridges, for the salaries of the judges and wiams, etc. This
share is referred to by the Shafiites as the share of was??-
lih. The share of the Relations is divided among their poor
and rich, minors and adults equally; but the males receive
twice as much as the females,2 because they are entitled to
this share by virtue of relationship, with respect to which
God said : l " To the male the equal of the share of two
females ". The clients of the Relations, and the children
of their daughters are not given a share. The orphans re-
ceive a share only in case they are poor, and their share is
discontinued on their coming of age. By " indigent " here
are meant the indigent from the beneficiaries of the fa'y
(ahl al-fa'y) who are different from the indigent who receive
aid from the zakat, since the beneficiaries of the two revenues
are different. This is also true of the wayfarers.3 This last
requirement, namely, that by indigent and wayfarers here is
meant those from the fay beneficiaries is because, according
to the Shafiites, the fifth part of the spoils is disbursed in

1 Majtiia', p. 504; 'Alamklriyyah, vol. ii, p. 304.

2 The passage in the Mabsiit (part x, p. 9) to the contrary effect must
be a mistake.

8 Koran, chap. 4, verse 12.
4 Mawardi, pp. 218-9.

470 MOHAMMEDAN THEORIES OF FINANCE

the same way as the fifth part of the fa'y revenue, which
latter may not be disbursed to the zakat beneficiaries.1 The
Hanifites, however, as will be seen in the next section, hold
that a fifth part of the fa'y revenue is not set apart as in
the case of spoils.

According to the Shafiites, the fifth is disbursed equally
among all the five classes mentioned, but the Hanifites, as in
zakatj here, too, hold that the entire fifth may be disbursed
to one single class, e. g., the orphans, since the beneficiaries
are not entitled to a share, but may simply be given one.
Moreover, according to the Shafiites,2 the four last shares
are distributed among all the beneficiaries of the entire
Moslem world and not merely among such of them as are
found in the district where the proceeds were obtained.

SECTION II

The Fa'y Revenue*

According to the Hanifites, a fifth part of the fa'y reve-
nue is not set apart, as in the spoils, but the whole of the
fa'y revenue is disbursed for purposes of general utility to
the Moslem community (fi masalih al-muslimm) ; such as
the stipends of the soldiers, the fortification of cities, the
maintenance of stations on the highways for protection
from robbers, the dredging of great rivers, the building of
dikes, the stipends of the learned ('ulama'), judges, muftis,
public inspectors, teachers, students, collectors, governors
and their assistants, and in general persons who exert them-
selves in doing some work for the Moslems in consideration

lCf. Mawardi, p. 217; Muzani, vol. iii, p. 179; Minhdj, vol. ii, p. 299.

1 Umm, p. 71 ; cf. Minhdj, vol. ii, p. 294.

8 Majma', p. 520; Hiddyah, vol. v, p. 306; Mabsut, part iii, p. 17;
Kasani, vol. vii, p. 116; Mawardi, p. 218; Umm, vol. iv, p. 78; Muzani,
vol. iii, p. 199; Minhdj, vol. ii, p. 293; Wajlz, p. 288; Ibn Rushd, B., p.
325; Mudawwanah, part iii, p. 26; Kharashi, p. 427.

EXPENDITURE OF THE SECULAR REVENUE 47!

of a reward.1 Some say that only the offspring of the
soldiers receive stipends, but the opinion generally accepted
by the Hanifites is that the offspring of all the classes re-
ceive stipends, because the sustenance of the offspring is
upon the fathers, and if the offspring were not given their
sustenance the fathers would have to go into business and
Moslem interests would suffer from it.2

According to the Shafiites, as in the case of the spoils,
one-fifth of the fay revenue is set apart to be spent like the
fifth of the spoils, and the remaining four-fifths are, in the
more prevalent view of the matter, disbursed to the army
alone, and in another view, to the army as well as for other
purposes of general utility to all Moslems.3

According to al-Muzani,4 al-Shafi'i holds that the four-
fifths of the fa'y is applied to the payment of the soldiers'
stipends, and if there is a surplus it is used for the repair
of forts, and the purchase of ammunition and arms, and in
general, for the strengthening of the Moslems; any further
surplus is divided among the soldiers according to their
stipends. Moreover, the stipends of officials, such as judges
and religious leaders, employed in the service of the fa'y
beneficiaries are paid out of the fa'y. In other words, ac-
cording to the prevalent Shafiite view, only the share of the
masatih, namely, one-fifth of one-fifth of the entire fa'y is
spent for purposes of general utility.5

Finally, according to Malik,6 the entire fa'y revenue and

1 According to the Hiddyah, the persons who received stipends
in its author's days were the judges, the teachers (mudarris), and the
muftis.

J \fobsut, part iii, p. 18; Ma/ma', p. 520; 'Alamkiriyyah, p. 268.

1 Mawardi, p. 219; Minhdj, vol. ii, p. 294; Wajlz, p. 289.

4 Vol. iii, p. 206.

5 Minhdj, vol. ii, pp. 294-6 ; Wajiz, p. 289.

• Ibn Rushd, #., p. 325; Mudawwonah, part iii, p. 26; Kharashi, p. 427.

472 MOHAMMEDAN THEORIES OF FINANCE

the fifth of spoils are a part of the assets of the public
treasury and belong to all the Moslems, that is, they are
appropriated by the imam, according to his judgment, for
the stipends of soldiers, the building of forts and mosques,
the salaries of judges, the settlement of debts, the marrying
of bachelors (afzab), the blood money of wounds, and other
purposes of public utility. If the revenue is ample, the Re-
lations (of the Prophet) are paid first, then the remainder
of the revenue of each city is disbursed to the fa'y bene-
ficiaries of that city, or, to use the wording of the Mudaw-
wanah, " to those who conquered the city by assault or by
treaty ". The poor among these latter are first provided,
the amount given to each being sufficient for a year's sub-
sistence. If, on the contrary, the revenue is not sufficient for
all, the neediest are paid first. It is lawful to transfer the
greater part of the fa'y revenue of one city to another if
the beneficiaries of the latter city are in greater need.
When there is a surplus, it may be transferred to another
district, or immobilized, or disposed of otherwise.

Al-ShafiTs reason for setting apart the fifth of the fa'y
is the verse of the Koran : * " What God has returned
(of a* a) as spoils to His Apostle from the people of the
towns, belongeth to (li) God, and to the Apostle, and
to the Relations (dhu al-qurba), and to the orphans, and to
the indigent, and to the wayfarers ". Ibn Rushd says that
because the wording of this verse resembles that of the
verse concerning the fifth of the spoils, al-Shafi'i by mis-
take concluded that the mode of division there mentioned
applies to the fifth only, and that consequently a fifth part
of the fa'y also must be set apart. The division referred
to in this verse, however, applies to the whole of the fa'y.
The same Ibn Rushd 2 remarks that some followed the literal

1 Chap. 59, verse 7. s Ibn Rushd, B., pp. 315-6, 325.

EXPENDITURE OF THE SECULAR REVENUE 473

sense of the verse and held that the entire fa'y is disbursed
like the tilth of spoils; but that the other side took the speci-
fications of the verse to be merely illustrative (tanbih), not
limitative (ta'dld).

Al-Kasani ' says that although there are two reports
from Abu Hanifah on the matter, the more reliable of the
two is the one according to which there should be no fifth
set apart from the fa'y, because the fifth is set apart only
in the case of spoils and the fa'y is not spoil. There is a
hadith from Sufyan Ibn Sa'kl to the effect that only in the
case of spoils a fifth is set apart and that the fa'y is for all
Moslems.2

According to the Shafiites the fa'y revenue is disbursed
to the beneficiaries of fa'y (ahl al-fay) exclusively, ex-
actly as the sadaqah revenue is disbursed to the beneficiaries
of sadaqah (ahl al-sadaqah) exclusively. However, ac-
cording to Abu Hanifah, either may be disbursed to the
beneficiaries of the other.3 The Malikites * on this point
agree with the Hanifites.

The beneficiaries, or, literally, the people, of sadaqah were
those who had not migrated,5 and on the contrary, the

1 Vol. vii, p. 117.

1 Yahya, p. 5.

During the lifetime of the Prophet the whole of the fa'y belonged
to him, and he defrayed from it the subsistence of his family, and the
rest he spent in the interests of Moslems in general. (Mawardi, p.
218; Yahya, p. 3; Wajis, p. 289.)

8 Mawardi, pp. 219-20.

4 Kharashi, p. 120.

5 According to the Mabsut (part x, p. 6), before the conquest of
Mecca it was a farg obligation upon every Moslem to migrate to
Medina in order to learn Islam and join the Moslems in order to aid
the Prophet. The people who did this were called the Emigrants
(muhdjir). "And they who have believed but have not fled (/am
iuhdjiru) their homes, shall have no rights of kindred with you at all"
( Koran, chap. 8, verse 73.) After the conquest of Mecca, this verse

474 MOHAMMEDAN THEORIES OF FINANCE

people of fay were the emigrants who defended the Mos-
lem territory and its sacred places, and who fought the
enemy. Formerly the name of muhajir (emigrant) used
to apply only to those who had left their homes to go to
Medina in the quest of Islam, but after the conquest of
Mecca this distinction disappeared, and the name came to
designate the people of fa'y in opposition to the people of
sadaqah who were called a'rabi (Bedouin).1

There is a hadith to the effect that Moslem Bedouins
(a'rab al-muslimm) have no share in the fay and the spoils
unless they fight together with the Moslems. Therefore
the Bedouin who has not fought with the Moslems and is
not poor, or is engaged in trade or some other work, has no
share in the spoils and the fa'y until he falls in need; in
that case he receives a share with the needy (ahl al-hajah).1

According to al-Shafi'i,2 the Prophet used to instruct his
armies to tell the persons who became Moslems : " If you
migrate, then you shall have what the Emigrants have, but
if you remain in your homes, you are like the Bedouins ".

According to al-Mawardi,3 if the imam desires to give

was abrogated by the hadith: " There is no migration after the con-
quest, but only holy war and sincere intention (niyyah)!' Again the
Prophet said: "The emigrant is the person who shuns (hajara) the
evil and shuns what God forbade." According to Ibn al-Athir (under
the word hajara) there were two kinds of migration. The first migra-
tion or hijrah for which God promised Paradise was the migration to
Abyssinia and to Medina. After the conquest of Mecca, the second
hijrah (migration) came to supplant the former. This second hijrah
consisted in the Arabs of the desert (a'rdbi) leaving the desert and
joining the Moslem campaigns. This second hijrah, however, did not
equal in meritoriousness the former. If, without an excuse for so
doing, a person returned to his home after migrating, he was consid-
ered an apostate. The word muhajir (emigrant) came to be used as
the opposite of Bedouin (a'rdbi) (Ibn al-Athir under 'aruba}.

1 Mawardi, p. 220.

2 Yahya, p. 5 ; cf. Muzani, vol. iii, p. 242.

s Umm, vol. iv, p. 84. 4 P. 220.

EXPENDITURE OF THE SECULAR REVENUE

475

presents to a people from the fay revenue, he may do so
if it will result to the benefit of the Moslems at large.1 If,
however, the present of the imam, being in his personal in-
terests only, does not redound to the benefit of the Moslems,
then it must be paid out of his own property.2

It is allowed to the imam to assign from the fa'y a sti-
pend ('ata) to his male children, since they are from the
beneficiaries of the fa'y. If they are yet minors they re-
ceive the stipend given to the offspring of the pioneers
(dhawu al-sabiqah) , and if they are of age,3 they receive

1 The Prophet gave 'Uyaynah, on the day of the battle of Hunayn,
one hundred camels, al-Aqra' one hundred, and to al-'Abbas fifty
camels, but the latter was displeased at the paltriness of his share, and
so the Prophet ordered that they give him more until he was silenced.

2 It is related that a Bedouin came to the calif Omar and recited a
poem asking for assistance. Omar was touched by his plea and wept
until his tears wetted his beard and he ordered his coat given to the
Bedouin, saying that he had nothing else. Al-Mawardi adds that Omar
made his present out of his own property and not that of the Moslems,
because his present did not involve any benefit for the Moslems at
large. Such Bedouins, al-Mawardi goes on to say, belong in the
people of sadaqah, but Omar did not make the present out of the
sadaqah revenue, either because in his poem the Bedouin reproved him,
or because the $adaqah is disbursed to the neighbors and the Bedouin
was not one of them. In contrast with Omar, the calif 'Uthman was
reproved by the people for not taking into account the distinction be-
tween the two cases and charging all his gifts to the fa'y revenue.

* It is related of 'Abdallah. son of Omar, that when he came of age
he presented himself before his father and said: "Oh, Father, I have
just come of age, assign me then (a stipend)." Omar assigned him
2000 dirhams. Then came to him a son of the Helpers (an$dr, t. e.
the Medina people who became Moslems and otherwise helped the
Prophet when he came to their city) who had just come of age, and
asked for a stipend, and Omar assigned him 3000. Thereupon 'Ab-
dallah said : " You assigned me 2000, and you assigned him 3000, and
yet his father has not fought the battles you have." — " Yes," answered
Omar, " but I saw the father of your mother fight the Prophet, whereas
I saw the father of his mother fight with the Prophet, and the mother
is worth more than 1000."

476 MOHAMMEDAN THEORIES OF FINANCE

the stipend given to soldiers (nmqatilah) of their rank-1
It is not, however, lawful for the iniam to assign his female
children a stipend from the fa'y, because they are his off-
spring and are provided for in the stipend of their father.

As regards his slaves, as well as the slaves of others, if
they are not soldiers, their subsistence is upon their masters.2
If, however, they are soldiers, opinion varies, as will be
explained in the next section. The slaves may be assigned
a stipend after they have been set free. It is likewise al-
lowable to assign a stipend for the intendants (naqlb) of
the beneficiaries of ftfy, but not to the officials ('ummal),
because the former are from the people of fa'y, but the
officials only receive a wage for the work they have done.3

According to the Hanifites,2 if a beneficiary of the fa'y
dies in the middle of the year he foifeits his stipend
(fata), because it is a kind of gift (silah) on the part of
the state and not a debt, and its beneficiary does not acquire
a title to it until after he has received it. If, however, he
dies towards the end of the year, it is commendable that
his stipend should be given to his relations. Shams al-
A'immah, on the contrary, holds that nothing is given to his
heirs even in case he should die at the completion of the
year, since the stipend is a gift, and therefore is not com-
plete before its receipt. If a beneficiary has been given his

1 The rules concerning the pensions of soldiers are explained in the
next section.

2 But cf. Mudawwanah, vol. iii, p. 28.

* The naqibs, and the 'arifs, who were just below the naqibs and the
lowest officers of the army, were appointed from among the people of
fa'y and served as intermediaries between the state and the soldiers,
informing the dlwdn administration about the condition of the sol-
diers and the offspring they had to take care of. (Minhdj, vol. ii, p.
295; Mawardi, p. 352; Ansari, vol. iii, p. 89.) According to the Wajlz
(p. 289), there was appointed an 'arlf for every ten soldiers.

4 Path, vol. v, p. 307.

EXPENDITURE OF THE SECULAR REVENUE 477

sufficiency before it became due, and if later he is dismissed,
or dies before the end of the year, opinion varies as to
whether the stipend should be returned. Muhammad Ibn
al-Hasan holds that it is preferable that it should be re-
turned. Abu Hanlfah and Abu Yusuf , on the other hand,
say that the stipend, being a kind of gift, may not be re-
claimed after the death of the person who received the gift.

SECTION III

The Military Stipends l

The diwan 2 of the army concerns the registration (ith-
bat) of the soldiers and their stipend ('ata'). A person
may be registered in the diwan of the army upon the ful-
filment of three conditions. The first condition consists
in the possession of the following five qualifications: (i)
The person must be adult, for the child belongs in the
class of offspring and dependents and may not be registeied
in the diivan of the army. (2) He must have freedom of
status, because the slave is included in his master's share.

1 Mawardi, pp. 351 et seq. The rules set forth in this section, with
respect to the disbursement to the soldiers in the way of military sti-
pends of four-fifths of the fa'y revenue, are according to the Shafiites.
The Hanifites and the Malikites do not devote to this matter any
special attention, probably because according to them the fa'y revenue,
or at least a part of it, need not be disbursed exclusively to the
soldiers, as the Shafiites require, but on the contrary may be disbursed
entirely for peaceful purposes, such as the salaries of civil function-
aries. The Shafiites, as we already saw, allow this in regard to the
share of viasdlih, that is, in one-fifth of one-fifth of the fa'y revenue
only. Cf. An§ari, vol. iii, p. 89 ; Mugni, vol. iii, p. 90.

1 Diwdn means a register, or a government office where administra-
tion is carried on. Thus dlwdn al-jaysh (diwdn of the army) means
the register or administrative office of the army, and dlwdn al-$adaqdt
(diwdn of the sadaqahs) means the registers where the records per-
taining to the sadaqahs are entered, or the office where the registers
are kept and the administrative work pertaining to the sddaqahs is
carried on. (Mawardi, p. 343.)

478 MOHAMMEDAN THEORIES OF FINANCE

Abu Hanifah, following the precedent of the calif Abu
Bakr, allows the giving of soldiers' stipends to slaves. On
the contrary, al-Shafi'i, following the precedent of Omar,
makes freedom a requirement, but allows for the slaves in
the way of increased stipends for their masters. (3) He
must be a follower of Islam, in order that he may ward off
harm from the Moslem community by virtue of his belief
and in order that his sincerity and judgment may be de-
pended upon. Therefore, a dhimmi may not be registered
along with Moslems, and the name of a Moslem is stricken
from the register if he becomes a renegade. (4) He must
be free from personal defects (afat) which prevent him from
participating in fighting. Therefore cripples, the blind, and
the one-handed, are barred from registration. The dumb
and the deaf, however, are not barred. The lame, if horse-
men, are not barred; otherwise they are. (5) He must be
courageous in battle and conversant with the art of war.

When the applicant is possessed of all of these five quali-
ties, his registration in the register (diwan) of the army
depends upon the fulfilment of two more conditions, i. e.,
the offer and the acceptance. The offer (ija-b) is made by
the applicant if he is not engaged in any employment; on
the other hand, the offer is accepted by the authorities (wall
al-amr) if there is need for the services of the applicant, or,
to quote al-Ansari,1 "if the funds are ample." If the ap-
plicant is well-known and of high standing, it is not proper
that he should be described and characterized in the regsiter,
but if he is from the ordinary people, then he is described
and signalized, and his age, stature, color, and facial fea-
tures are described and his peculiarities indicated, in order
that he may not be confused with others bearing the same

1 Vol. iii, p. 92. This seems to suggest that every able-bodied person
who had no other occupation was enrolled as a soldier and received a
stipend from the dlwdn of the army.

EXPENDITURE OF THE SECULAR REVENUE 479

name. The stipendiary is called when the stipends are dis-
tributed, and is attached to his naqib or 'a-rif in order to
receive his stipends through his intermediary.

After the title to registration in the register has been
settled, the next question to solve is the order of registra-
tion. This order may be general or particular. The gen-
eral order is the order in which the tribes (qdba'il) and
clans (ajnds) are entered in the register, each being entered
apart from the other. It is not allowed therefore to enter
persons belonging to different groups under one group,
or to enter persons coming under a particular group un-
der different groups. This is in order that the call of the
register may be in a uniform manner, and that strife and
friction may cease. The order of registration differs ac-
cording as the stipendiaries are Arabs or non-Arabs.

If they are Arabs, their tribes and clans are entered in
the order of their relation to the Prophet, as was done by
the calif Omar. In this order of registration, one begins
with the origin of the lineage (asl al-nasab) ; then with the
successive generations in the male line (ma yafra'u 'anhu).
Thus the two main branches of the Arabs, are the 'Adnan
and Qahtan folk. The former come before the latter
because the Prophet was from among them. On the other
hand, among the 'Adnan folk the Mudar folk precede the
Rabi'ah folk. Again, from the Mudar folk, the Quraysh
are given precedence over the rest. Again, among the Qu-
raysh the Banu Hashim come first. The Banu Hashim
then constitute the pole of the register; after them come in
order of relation to the Prophet the adjoining families until
the whole of the 'Adnan folk are included.1

1 But cf. Angari, vol. iii, p. go. According to al-Mawardi, the Arabian
society is grouped on the basis of relationship in the male line (nasab)
and, according to the length of lineage with respect to its first founder,
each of the two independent main branches (shtfb) of 'Adnan and

480 MOHAMMEDAN THEORIES OF FINANCE

If, however, the beneficiaries are not Arabs, and are not

organized on the tribal (nasab) basis, then they are united
by one of two ties: either by the tie of race (ajnas) or by
that of home (buldan). The Turks and Hindus are ex-
amples of the former, and the Daylams (Kurds) of the
second. But the Turks and Hindus are further distin-
guished among themselves by races, and the Kurds by cities.
These races and cities then are entered in the register in
the following order of precedence. First are entered those
who became Moslems first. Then, as in the case of the
Arabs, are entered the nearest relatives of the ruler (ivali
al-amr) , then those who obeyed him first.

The particular order is the order in which the individuals
of the same group are registered. Here the order of prefer-
ence is according to priority in accepting the Islam. If this
test fails the preference is according to godliness (din), then
age, then courage. If the last test also fails, e. g., if all are
of the same courage, then the imam may draw lots as be-
tween them, or use his own judgment.

The amount of the stipend should be sufficient to satisfy
the soldier's needs, in order that he may refrain from engag-
ing in what may keep him from protecting the Moslem coun-

Qahtan is divided, as it were, into six concentric social layers. The
sha'b (branch) then includes all those who can be traced to the same
remotest lineage. Within the sha'b are distinguished the so-called
qabilahs; thus the 'Adnan folk comprise the qabllahs of Mu^ar and
Rabl'ah. Within the qabllah are distinguished the imdrahs, such as the
Quraysh and the Kinanah ; within the imdrah, the batns like the Banu
'Abd Manaf ; within the batn are the fakh-dhs, like the Banu Hashim.
Finally, within the fakh-dh are the fasilahs, like the Banu al-'Abbas,
Banu Abu Talib. Each layer contains the following ones, namely, the
sha'b includes the qabllahs, the qabllah the imdrahs, the imdrah the
batns, the batn the fakh-dhs, and the fakh-dh the fasilahs. In the
course of time, as the lineage lengthens the various layers become
raised to the preceding layer; thus the qabllahs become sha'bs, the
imdrahs, qabllahs, etc. (Cf. Zaydan, vol. iii, p. 34; vol. iv, p. n; Ibn
Khaldun, pp. 108 et seq.)

EXPENDITURE OF THE SECULAR REVENUE 481

try. This sufficiency is measured with reference to three
circumstances; the number of children and slaves he has to
provide for ; the number of horses and retinue he stations ;
thirdly, the place where he lives with reference to the high
or low cost of living. In other words, the soldier is as-
signed an amount sufficient to provide for subsistence and
wearing apparel for the whole year, and this amount be-
comes his stipend.

The condition of the stipendiary is examined every year
and if his pressing expenses have increased, his stipend is
increased, and vice versa. The doctors have disagreed as to
whether it is permissible to increase the stipend beyond one's
sufficiency. Al-ShafVi prevented the increase of the stipend
beyond one's sufficiency, even if there should be available
funds, because the funds of the public treasury are not dis-
bursed except for necessary expenses. Abu Hani f ah al-
lowed such increase over and above one's sufficiency when
the funds are abundant.

The time of payment of the stipends is known, and the
army expects to be paid when it has acquired title to its
pay. This time is fixed according to the time in which the
revenues of the public treasury are due. If the revenue is
collected once a year the stipends are paid in the beginning
of the year. If the revenue is collected twice a year the
payment is made twice a year. Finally, if it is collected
once a month, the payment is made at the beginning of
each month. This is because as soon as there has been col-
lected any revenue it should reach its destination as soon
as possible, but the army has no right to demand payment,
if the collection has been delayed. If the payment of the
stipend is delayed the stipendiaries may legally demand their
settlement if there are funds in the treasury. If, on the
contrary, the treasury is involved in financial difficulties
owing to untoward events which wiped out its revenues or

482 MOHAMMEDAN THEORIES OF FINANCE

delayed their collection, they then become creditors of the
treasury to the amount of their stipends; but they may not
legally demand (mutalabah) their stipends from the Moslem
ruler, just as the creditor may not demand from his debtor
when the latter is in straits.

If the ruler wants to dismiss part of the army for suffi-
cient cause he may do so; otherwise this is not lawful,
because the army of the Moslems is for their protec-
tion. On the other hand, if a part of the army wants to
quit the army, it is allowed if they are no longer needed;
but it is not allowed if they are needed, unless they have
an excuse. If the soldiers refuse to fight when they are
ordered to do so, notwithstanding that they are equal in
number to the enemy, they forfeit their stipends ; but if they
are weaker than the enemy, their stipend is not canceled.
If a soldiers' beast is destroyed during a battle the loss is
made good to him, but if the beast dies outside of the battle
he is not compensated for it. If a soldier's weapons are
destroyed in battle, he is only repaid for them if no allow-
ance had been made for them in his stipend. Likewise,
when a soldier is detached for a campaign, he is given the
traveling expenses, if they have not been allowed for in his
stipend. If a soldier dies or is killed in action his stipend
is turned over to his heirs,

The stipend is turned over to the heirs if the stipendiary
died after the collection of the fa'y revenue, even if it should
be before the completion of the year. The heirs, however,
do not receive anything if the stipendiary dies after the
completion of the year but before the collection of the fa'y
revenue, for the stipendiary acquires a title on his stipend
only by the revenue's having been collected.1

1 Wajlz, p. 289; Ansari, vol. iii, p. 91; Mugni, vol. iii, p. 92; for de-
tails on the stipendiaries of pious foundations, see Mugni, ibid.

EXPENDITURE OF THE SECULAR REVENUE 483

Concerning the continuation of the subsistence of his

offspring out of his stipend from the dlwan of the army, the
doctors have held two views. One view is that upon the
death of the rightful titleholder of the military stipend, the
latter is canceled, and the offspring are cared for from the
proceeds of the zakat taxes. The other view is that this
subsistence is continued to them from the stipends of the
deceased soldier in order to induce people to enter the army
and to inspire them with courage. According to al-Ansari,1
the subsistence of the wives and children of the stipendiary
after the latter's death is continued until his wives and
daughters are married and until his sons become indepen-
dent as to earning their living by becoming registered in
the diwan as soldiers, or by other means. The doctors have
likewise disagreed on the canceling of the stipend when
the stipendiary becomes a cripple. One view is that the
stipend is canceled because it was given in consideration of
a service which is no longer performed. The other view
is that the stipendiary is still given his stipend in order that
this may serve as an incentive for volunteering for the
army service.

1 Vol. iii, p. 91 ; cf. Mugni, vol. iii, p. 91.

CHAPTER XII
TAX GRANTS

Al-Mawardi discusses tax grants under the general topic
of grants (iqtaf) and distinguishes them from the grant of
lands in that the latter is a grant of ownership in the land,
whereas he holds the former a grant of the usufruct (iqttf
al-istiglal) .*

The grant of the usufruct (iqfaf al-istiglal) is of two
kinds, grant of the tithe and grant of the kharaj.2

( i ) Grant of the tithe. This is not lawful because the
tithe is a kind of zakat in favor of certain persons who at
the time of appropriation must possess certain qualities,
e. g., poverty, and it is possible that the grantee may not
possess the qualities required from the beneficiaries of tithe
when he becomes entitled to it. Moreover, the zakat is due
upon the fulfilment of certain conditions and sometimes these
conditions may be wanting and then the zakat is not due.
If, however, the conditions are present and the zakat is due,
and furthermore the grantee is entitled to it at the time of
payment by possessing the required qualities, such as pov-
erty, it is virtually a case of an assignment (hawalah) of

1 Mawardi, pp. 337-341. This chapter is entirely according to the
Shafiites.

2 From the financial standpoint, a grant of tithe or kharaj meant that
the state instead of itself collecting the tithe or khardj, in order to
defray from the proceeds the stipends of the state employees gave the
latter a grant of tithe or khardj, that is, the privilege of collecting the
tithe or khardj directly from the taxpayers and applying the proceeds
to the settlement of their stipends.

484

TAX GRANTS 485

the tithe against the person who is to pay it in favor of
the assignee. Such an assignment therefore is valid and
the payment of the tithe to the assignee is allowed ; never-
theless, this does not create for him a title to the tithe until
he has actually received it, for the zakat ceases to be the
property of the zakat payer only after he has paid it.
Therefore, if the assignee is refused the tithe he cannot
bring an action against the tithe payer and in such case the
tithe collector is more entitled to the collection of the tithe
than the assignee.

(2) Grant of the kharaj. This differs according as the
grantees differ, as follows :

(a) The grantee is a beneficiary of the sadaqah reve-
nue. It is not allowable to grant kharaj to such, because the
kharaj is a part of the /cry revenue, and the beneficiaries of
the sadaqah revenue are not entitled to the fa'y, just as the
converse is true. Abu Hanifah allowed this because he
permitted the disbursement of the fa'y to the sadaqah bene-
ficiaries.

(b) The grantee is one of the beneficiaries of the share
of masalih who are not assigned stipends from the public
treasury. Although these people may be given assistance
from the kharaj revenue, they may not nevertheless be as-
signed a regular stipend, for they are the least entitled
(nail) to the fa'y and get a share only after the rightful
claimants of the fa'y have received their stipends ; what they
get therefore comes only from the gifts distributed from
the share of masalih.

, When these people are given a share from the kharaj, it
is legally a case of assignment (hawalah) and not of grant
(iqta(), and hence two conditions are necessary if it is to
be allowed. First, the amount assigned must be fixed and
the justification of its donation already present; and sec-
ondly, the kharaj must have already fallen due, otherwise

486 MOHAMMEDAN THEORIES OF FINANCE

the assignment is not valid. These two conditions differ-
entiate the assignment from the grant.

(c) The grantees are from the class of the beneficiaries
of the fa'y who are stipendiaries (murtaziqah) of the
diivan, in other words, soldiers (ahl al-jaysh). These peo-
ple are the fittest (akhass) of all to be grantees of the
kharaj, for they receive stipends to which they are entitled
in consideration of the services they have rendered in fight-
ing the enemies of Islam and in defending its sacred terri-
tories. Since a grant to these people is valid, the next thing
to consider is the nature of the khardj revenue granted, for
it may be of two kinds. It may be in the nature of a poll-
tax (jizyah), or it may be in the nature of a rental (ujrah).
If the kharaj l granted is the jizyah, inasmuch as the jiz-
yah is not levied forever, but only as long as the taxpayer
is persisting in his unbelief, it is not lawful to grant it for
a term longer than one year, because the grantee is not
assured of its collection after the year. When a grant is
made for one year, if it is after the tax has fallen due, it
is valid, but if it is made during the year before the tax
has yet become due, then there are two ways of looking at
the situation : If the condition of lapse of a year in respect
to the jizyah is considered to have been meant for the con-
venience of payment, the grant is valid ; but if it is said that
the lapse of a year is necessary in order for the tax to be-
come due, it is not valid.

If, however, the kharaj granted is the rental of the
ground, which is due permanently, its grant for a term of
more than one year is valid, and it need not be limited to
one year. In fact, the grant of this latter kind of kharaj
may be in one of the following three forms.

1 The word khardj, besides the land tax, its more common meaning,
may also mean any tribute. In this latter sense in which it is here
used by al-Mawardi, khardj applies to the jizyah as well as to the
khardj (land tax) proper.

TAX GRANTS 487

(a) It may be granted for a definite number of years,

e. g., ten years. Such a grant is valid if the stipend (rizqt)
of the grantee is known to the grantor, and, furthermore,
if the amount of the kharaj is known to both grantor and
grantee. If, however, the second condition is not present,
opinion differs according as the kharaj is proportional or
fixed. The jurists who have allowed the levy of the pro-
portional (muqasaniah) kharaj have justified it by con-
sidering it to be a case of granting a definite amount of
kharaj. The jurists who have opposed the levy of the pro-
portional kharaj have considered it to be a case of granting
an unknown quantity of kharaj. If, however, the kharaj
is of the fixed (masahah) kind, then, if it is of the kind that
does not vary with the kind of crop, the grant is valid, since
the amount of the kharaj granted is known. The grant is
also valid, if the kharaj is of the kind which varies with the
nature of the crop, but the stipend of the grantee is equal
to the amount of the kharaj which would be yielded by the
highest of the various possible rates, for the grantee has
virtually consented to a lesser yield, should that be the
case; on the contrary, the grant is not valid, if the grantee's
stipend is equal to the yield of the lowest of the various
possible rates, for he may possibly get more kharaj than
his stipend would entitle him to.

If the grantee remains alive during the term of the grant,
it continues. If, however, he should die before its expiry,
the grant is then considered canceled for the rest of the term,
and the kharaj right reverts to the treasury. In such case,
if the deceased has left offspring they, receive a share from
the share of offspring, but not from that of the army; and
therefore what they receive is of the nature of public assist-
ance (sabab). not of grant. A third contingency is that
the grantee should become a cripple after a time. Accord-
ing to those who hold the view that being a cripple does not

488 MOHAMMEDAN THEORIES OF FINANCE

deprive one of his stipend, he continues to enjoy the grant,
but according to the opposite group, the contrary is true.

(b) The grant is to be valid during the life of the
grantee, and after his death it is to devolve to his heirs. Such
a grant is void, because it amounts to the alienation of the
interests of the treasury, since the treasury's right to col-
lect taxes in this way becomes an inheritable private prop-
erty. Although such a grant is legally imperfect (fasid),
the grantee is nevertheless entitled to the kharaj he has
already collected and the taxpayers are absolved from their
debts; if he collects more than his stipend, he returns
the surplus to the treasury and, on the other hand, if he
collects less than his stipend, he applies to the treasury for
the balance. The sultan in this case announces the void-
ness of the grant, in order that the grantee may be pre-
vented from collecting, and the taxpayers from paying to
him, the kharaj', should they do so they would have to
pay the kharaj over again.

(c) The grant is made for the life of the grantee. There
are two views as to this case : According to those who hold
that being a cripple does not constitute a cause for the dis-
continuance of the stipend, such a grant is valid, but ac-
cording to those who hold the opposite view, it is not valid.

When a grant is valid, the sultan may still revoke it for
the coming year, and in that case the stipendiary applies
for his stipend to the dvwan of the army. The sultan may
not revoke the grant for the current year, if the time of the
stipend has come before the kharaj has fallen due, because
the grantee has already acquired a title on the kharaj of
that year, considering that his stipend is overdue; but if
the kharaj has fallen due before his stipend, then the grant
may be revoked, because the anticipation (ta'jil) of a future
debt, i. e., the stipend, although lawful, is not binding.

As regards the stipends of others than soldiers, when
these are given a grant of kharaj, three cases are possible:

TAX GRANTS 489

(a) They are persons who, like the public functionaries
('umm&l al-masalih) and the kharaj collectors, receive sti-
pends in payment for temporary services. A grant in con-
sideration of such stipends is not valid, and when it is made
it legally constitutes an assignment and assistance (tasblb),
which is valid only after the stipend and the kharaj have
fallen due.

(b) They are persons who receive stipends in consider-
ation of permanent services, but the stipends legally con-
stitute a case of /a'd/a/r.1 They are the persons connected
with religious and pious institutions (al-nticinln /? a'mal
al-birr), such as the mil' adh-dhins (callers to prayer) and
the imams, who, without an investiture from the proper au-
thorities, might have offered their services to those institu-
tions voluntarily and without payment for them (yasihhu
al-tataiwit- biha), but who actually are receiving stipends.
A grant of kharaj in favor of such persons legally is not a
grant, but an assignment.

(c) They are persons who, like the judges and the dlwan
registrars, receive stipends for permanent services, but
whose stipend legally is a wage (ijarah) and who can law-
fully exercise jurisdiction only by virtue of investiture
(taqlid) and legal authority (wilayah). In consideration
of their stipends they may be given a grant of kharaj for
one year, and, according to one view, as in the case of the
army, also for more than one year; but according to an-
other opinion this is not lawful, because they may be dis-
missed from service or shifted to another post.

1 Ja'dlah, according to the Shafiites (Tanbih, p. 149; Wajiz, p. 240),
is the promise of a compensation for services rendered. The title to
the compensation is acquired only after the performance of the work.
Although the person undertaking the work is free to cancel the agree-
ment at any time, the person who promised the compensation may do
so only before the performance of the work.

CHAPTER XIII
CONCERNING PUBLIC RECORDS

SECTION i
The Public Registers 1

THE accounts (a'mal) of taxes (rusum} and dues (hu-
quq) entered (ithbat) in the public registers are subject to
the following rules: The jurisdiction of each oily is
marked out so that there is no overlapping, and moreover
the districts (nahiyah) of each city are entered separately
when they are subject to exceptional treatment; this is
also true of the individual estates (day'ah) of a district
when they are treated in an exceptional way, but if all the
estates are subject to the same rules, then they are not
treated separately.

The way in which the city has been conquered, e. g.,
whether by assault or peace, is also recorded ; and further-
more a record is entered of the status which was given to
its lands, e. g., whether kharaj or tithe lands, and whether
or not the different districts of the city are subject to the
same rules.

1 Mawardi, pp. 356-360.

Al-Mawardi distinguishes between ithbdt and raf. Ithbdt means to
enter a record in a register ; raf, to make a report to the registrar in
order to have it recorded. Ithbdt al-rufu would then mean the enter-
ing of such reports. Hal means a statement of account. The French
etat renders it exactly. Ikhrdj means to prepare such a statement by
reference to the registers.
490

CONCERNING PUBLIC RECORDS 49!

If all the lands within the district are tithe lands, it is not
necessary to register their area, since the tithe is fixed ac-
cording to the amount of the produce. When there is a
new crop, a report of it is made to the dlwan so that a
record of it may be entered in the register of the tithes. In
the report, the names of the owners of the lands are also
mentioned, because the tithe is an obligation charged to the
owner, and not to the land property. Moreover, when a
crop and the name of the owner are reported to the diwan,
the amount of the crop and the method of irrigation used
in cultivating it, whether running water or artificial irriga-
tion, are indicated in order that the rate of the tithe to be
charged may be determined.

If, however, all the lands of the city are kharaj lands,
the areas are entered, because the klwraj is fixed ac-
cording to area. If the kharaj is in the nature of a rental,
the mention of the name of the landowner is not necessary,
because his conversion to Islam does not make any dif-
ference so far as the payment of the kharaj is concerned.
But if the kharaj is in the nature of jizyah, then it is nec-
essary to enter the names of the landowners, and their re-
ligous affiliations, since the payment of the tax in this case
depends on the religious status of the owner.

If part of the lands are tithe lands and part kharaj lands,
the former are entered in the register of tithes, and the
latter in the register of the kharaj, and each part is treated
in accordance with the respective rules of its class as above-
mentioned.

The details pertaining to the kind of the kharaj, namely,
whether it is of the proportional or the fixed kind of kharaj,
are entered. If it is the proportional kharaj, then when a
statement concerning the area of the land is prepared
(ukhrijat) from the registers, the amount of the rate, like
one-third or one-fourth of the produce, is also mentioned

492 MOHAMMEDAN THEORIES OF FINANCE

in the statement, and the amount of the produce is reported
to the diwan in order that the amount of the tax may be
figured out accordingly. If the kharaj is paid in silver
(i. e., specie), two cases are possible. The kharaj may
vary with the nature of the crop, or it may not vary. If it
does not vary with the crop, then the area of the land is
determined (ukhrijat) from the registers in order that the
kharaj may be collected accordingly, and it is only neces-
sary in this case to report to the dlwan- the amount
collected. But if the kharaj varies with the kind of crop
grown on the land, the area is determined from the registers,
and the kinds of the crops are reported to the registrar in
order that the kharaj may be collected accordingly.

Furthermore, the dhiminis of each city, and the conditions
under which they have been admitted into the status of
dhimmi are indicated. If the amount of the jizyah is to
vary according to the financial status of the dhimmis their
names as well as their number are also recorded, in order
that their financial status may be known; otherwise only
their number is mentioned. Then every year a new exami-
nation is made, and the dhiminis who have come of age are
recorded in the register and those who have died, or have
become Moslems, are stricken out from it, the result being
that only the dhimmis who are liable to the jizyah are
registered.

If there are mines within the city limits, the mines and
their kinds are mentioned. In the case of mines the tax is
fixed according to what has been extracted from them, irre-
spective of the area of the land, and regardless of whether
it is tithe or kharaj land. As already mentioned in the
chapter on mines, there are various opinions as regards the
kinds of mines which must pay tax, and also as regards the
rate of the tax. If one of these points has been left unde-
termined by previous rulers, then the ruler for the time

CONCERNING PUBLIC RECORDS 493

being decides the kind of mine that is to pay the tax, and
the rate of the tax, and acts according to his opinion, pro-
vided he is a mujtahid. But if the previous imSms have
already expressed an opinion on these two points and acted
according to that opinion, then the ruler for the time being
follows their opinion only as regards the kinds of mines
he is to tax.

If frontier cities situated on the border of the enemy's
land (dar al-harb) have treaties with the Moslem state
whereby their goods are subject to a tax when they enter
the Moslem territory, these treaties are recorded in the
registers, and 'the amount of the tax rate, whether one-
tenth, or one-fifth, or more or less, is indicated. Further-
more, if the rates are to differ with the nature of the goods,
that fact is also mentioned. As regards the taxes levied on
goods carried within Moslem territory from one place to
another, the levy of a tax on such goods is prohibited by
the shartah and no mujtahid has ever allowed such a policy.
Besides, it is only in accordance with a policy of justice, and
the dictates of humanity. Such taxes are rarely levied,
except in tyrannical cities. It is related that the Prophet
said: " The worst of men are the toll collectors ('ash-sha-
nln) who destroy ".

When the governors (wall) change the laws of the
cities and the tax rates, the change is lawful, if the governors
are of the class of mujtahids and the change made by them
is one that is approved by the sharTaJi ; and the tax is
collected on the basis of it. In such case, when a statement
of the account is prepared from the registers, it is allowable
if only the new rate is taken into account, although it is
better that both rates should be mentioned, because it is
possible that the reasons which justified the change have
meanwhile ceased to exist; in such case the tax would
have to be paid according to the old rate. If, however, the

494 MOHAMMEDAN THEORIES OF FINANCE

change is not approved by the shari'ah, and the governor
who instituted the change is not a mujtahid, the change
is null and void. When a governor wants a statement
(hal) of a tax account, the statement must mention also the
rate previous to the change, unless the governor is already
acquainted with it. In this last case it is sufficient to indi-
cate that the rate used is the new rate.

SECTION II

The Duties of the Public Registrars l

The registrars of the diwan are charged with the follow-
ing six duties: the recording of laws; the settlement (istifa)
of the accounts of taxes and dues ; the recording of reports
(ithbat al-rufu') ; the audit of the accounts of officials; the
preparation of statements of accounts (ikhraj al-ahwal) ;
and the hearing of complaints. The parts pertaining to
finance are as follows :

1 Mawardi, pp. 370-75- To understand this section properly, the fol-
lowing distinctions must be borne in mind : There is, first, the depart-
ment of the diwdn, which is charged with the settlement (istifa'} and
the audit (muhdsabah) of accounts. This department is referred to
by al-Mawardi, as kdtib al-dlwdn or sdhib al-dlwdn, the latter appar-
ently applying to the head of the department. While an audit refers
to the accuracy of an account, a settlement, on the other hand, refers,
as it were, to the life career of the funds mentioned in an account, —
namely, whether or not they have been properly disposed by the person
who had laid hands on them, by their being turned over, for instance, to
the treasurer, who is referred to as the sdhib bayt-al-mdl. The word
'dmilun (plural of 'dmil) denotes the collectors who collect the taxes.
They may turn them over directly to the treasurer, or to some author-
ized official ('mmdl, also plural of 'dmil), who passes them on to the
treasurer. There is, finally, the official who issues authorizations
(tawql') for the payment of funds. He is referred to as muwaqqi'.
On the other hand, the person in whose favor the authorization was
issued is called muwaqqa' lah or sdhib al-tawqi'. Ihtisdb means to give
credit for a sum. Khar] ila refers to a revenue, kharj min, to an ex-
penditure.

CONCERNING PUBLIC RECORDS 495

The registrar of the diw&n sees to it that the laws passed
during his tenure of office are recorded in the dliu&n of the
respective district (nahiyah) as well as in the diivSn of the
public treasury, where a duplicate of all district records is
kept. As regards laws passed before his time, he refers to
their existing records, if those records have been written
by trustworthy registrars, and if the records have been de-
livered to him under the seal of the persons entrusted with
their safe keeping.

However, such reports do not constitute evidence in the
usage of courts. Abu Hanifah holds that the registrar
(katib) of the dlivan may not rely upon a written record
unless he has heard its contents directly from the person who
wrote the record and he meanwhile keeps it in his memory.1
Abu Hanifah arrived at this view by the analogy of legal tes-
timony and judgment. However, such a view is impossible
and absurd, for as testimony and judgment relate to private
rights where the persons who would take a hand in (mu-
bashir), and look after (qayyim) them are many and it is
not difficult for them to keep the facts in memory, it is not
lawful in their case to rely upon writing alone. The rules
and customs of the diwan, however, are matters of public
interest (huquq (ammah) which it is hard to keep in
memory, for although they are many and widespread, the
persons who would actually take a hand in them are few.
Consequently, in their case, writing may be relied upon alone.

The settlement of the accounts of dues and taxes. Two
cases are possible. The settlement may refer to the ac-
counts of the collectors ('amilun) directly responsible for
them, or it may refer to the accounts of the officials (eum-
mal} who have received the taxes from the collectors.
With respect to the settlement of accounts of the collectors

1 Cf. Kashf, p. 771.

496 MOHAMMEDAN THEORIES OF FINANCE

('amilun), if the officials ((ummal) admit having received
from them the tax, their word is accepted. If the admis-
sion is in writing, the practice of the registrars is to consider
such a written admission as evidence of the receipt of the
tax if, by comparison with the well-known writing of the
official, the writing is recognized to be his ; whether or not he
admits it. However, the opinion of the jurists on this
point is that if the official denies that the writing is his, the
writing alone cannot be held as evidence against him. If
the official admits the writing to be his, but denies that he
has actually received the tax, this written admission, as is
otherwise the custom, constitutes evidence, according to al-
Shafi'i, in the matter of public dues alone, that the tax has
been paid by the persons concerned (nm'amiluri) and that
the official received the same; but Abu Hanifah here again
differs from al-Shafi'i.

As regards the settlement of the account of the officials,
if it is a case of revenue for the public treasury (kharj ila
bayt-al-mal) , it is not necessary for the official to show an
authorization from the proper authority (tawqf wcdi al-
amr), and the admission of the treasurer (sahib bayt-al-
mat) that he received the money is sufficient for the ac-
quittal of the official. If the admission of the treasurer is
merely in writing and has not been confirmed by his oral
admission, according to al-Shan'i, it is evidence that he re-
ceived the money, although Abu Hanifah holds the opposite
view.

If, on the contrary, it is a case of a treasury expenditure
instead of revenue, then the officials may not make the ex-
penditure except upon a written authorization from the
proper authorities, such an authorization, when genuine,
being sufficient ground for the expenditure. There are,
however, two possible courses (wajhan) in giving the offi-
cial credit (ihtisab) for the amount included in the authori-

CONCERNING PUBLIC RECORDS 497

zation. The first course, which is the one recommended by
the faqihs, is that if the person in whose favor the authori-
zation of payment has been issued (nmwaqqa' lah) admits
having received payment of the amount contained in the
authorization, the official who made the payment is given
credit for the amount ; otherwise he is not given credit for
it. because the authorization, although it entitles the official
to pay the money, is by no means evidence that he actually
did pay it. The other course, which is the one followed in
the practice of the dnvan, is to give the official credit for the
amount in question so far as the public treasury is con-
cerned, and if the person in whose favor the authorization
was issued (sahib al-taivql1 ) denies having received the
amount, he institutes a suit against the official. The offi-
cial in such case has to support his contention by presenting
legal evidence, or, if he has no evidence, by demanding the
oath, failing in which he has to repeat the payment.

If the public registrar (sahib al-diw&n) has reasons to
doubt the fact of authorization, whether or not the persons
in whose favor it was issued admits receipt of the amount
involved, he does not give the official credit for it until he
has inquired about the matter from the person who issued the
authorization (muwaqqf). If the latter admits having is-
sued it, then the procedure is as above noted. If, how-
ever, he denies it, the official is not given credit for the
amount involved. In this last case, the official recovers his
loss by recourse to the persons to whom he made the pay-
ment, if such a recourse is still possible; otherwise the only
remedy left to him is to demand the oath from the person
alleged to have issued the authorization (muwaqqi').

The Record of Reports in the Diwan. There are three
kinds of reports (rufuf) : (i) reports of areas and accounts
(a'mal} ; (2) reports of receipts (qabd) and settlements
(istifa); (3) reports of expenditure (nafaqcth). As re-

MOHAMMEDAN THEORIES OF FINANCE

gards reports of area and account, if there are already in
the diwan previously established (muqaddar) records
(usul), their truth is determined by reference to those
records, and if the reports are found to be in accordance
with them, they are entered (ithbat). If, however, there
are no such records, then the entry is made in accordance
with the statements of the person who made the report
(rail1). As regards reports of receipt and settlement, they
are entered in the registers, on the mere strength of the
statement of the person who is making the report, since he
is reporting against, and not for, his own interests. Finally,
as regards reports of expenditure, the person making the
report is really putting forth a claim (da'wa) and there-
fore his report is not entered unless substantiated by con-
vincing proof. If he presents as evidence the authorization
(tawqi') of a superior officer the procedure is as explained
above.

The Audit of the Accounts of Officials. The procedure
in this connection differs according as the collector deals with
tithe or kharaj. If he is a collector of kharaj, then it is
his duty to make a report (raf) of his account to the regis-
trar, who is bound to verify the accuracy of the account.
It is not, however, the duty of the collector of tithe to
make a report of his account to the registrar, nor is it the
duty of the registrar to audit his account, because the tithe,
in al-ShafiTs opinion, is a kind of sadaqah whose disburse-
ment so little is a prerogative of the authorities (wulat),
that should the tithe payer settle his tithe dues directly to
the poor, his debt is discharged (ajzaat) as between him
and God. According to Abu Hanifah, however, the col-
lector of tithe is under obligation to make a report of his
account, and the registrar to audit the same.

When the account of a collector has been audited by the
registrar of the diwan, if no difference of view has arisen

CONCERNING PUBLIC RECORDS 499

between the two, the registrar is believed with respect to
his audit,1 but should the proper authority (wali al-amr)
entertain doubts on this score, he may require the registrar
to bring his evidence. If, thereupon, the proper author-
ity's suspicions cease, no oath is administered to any one.
In the contrary case, the authority in question may require
the oath from the collector, but not from the registrar,
since it is the collector who is subject to demand. If, how-
ever, the collector and the registrar have differed concern-
ing the account, the collector is believed upon his oath
if the disagreement bears on an item of revenue, since in
this case the assertion is made by the registrar and the bur-
den of proof rests on him. If, on the contrary, the dispute
has to do with an item of expenditure, then the collector
must prove his assertion. If, finally, the dispute concerns a
matter of area, then the area is remeasured, if that is pos-
sible.

1 The text here reads, " with respect to the balance of the account "
(fi baqdya al-hisdb). The word "balance," however, was omitted as a
meaningless, and probably later, addition.

CHAPTER XIV
PUBLIC DOMAIN *

THE concession (iqttf) of a piece of land by the sultan
is allowed only as regards lands which he may administer
and dispose of (tasarruf), and concerning which his orders
are valid. Consequently, his concession is not valid when
exercised with regard to lands which are the property of
known and definite persons. Concessions are of two kinds :
concessions of ownership (iqta tamlik), and concessions of
usufruct (iqtae istiglal). Al-Shafi'i,2 speaking of this dis-
tinction, says that in the case of iqtaf irfaq, as he calls iqta
istiglal , the grantee has only the right of use (intifaf) as
distinct from ownership (raqabah), and the right to pre-
vent others from using it so long as he or his agent is using
it; but that he forfeits his right by abandoning the thing
granted, and that he may not sell it to others. The conces-
sions referred to in this chapter with respect to waste and
cultivated lands are concessions of ownership.

Concession of Waste Lands (mawat)* According to
al-Shafi'i, the term " waste " applies to every piece of land
which is not proper for cultivation ('amir) and is not the

1 Mawardi, pp. 33O-37, 341-43-

8 Umm, vol. iii, p. 266.

* Mawardi, pp. 330-2, 308-13; Umm, vol. iii, p. 265; Mugni, vol. ii, p.
3345 IVajiz, p. 241; Ansari, vol. ii, p. 444; Minhdj, vol. ii, p. 171;
Hiddyah, voK ix, p. 2; Bahr, vol. viii, p. 238; Zayla'i, vol. vi, p. 35;
Majma', vol. ii, p. 436; Yusuf, p. 36; Mabsiit, part xxiii, p. 166; /ami',
vol. ii, p. 276; 'Alamkiriyyah, vol. v, p. 574; Durr, p. 708; Dardir, voL
ii, p. 181 ; Yahya, p. 6r.
5<x>

PUBLIC DOMAIN 501

hanm (complement or dependancy) of land proper for cul-
tivation. According to Abu Yusuf, a piece of land which
cannot be utilized is not considered " waste " unless it is far
enough from a town so that a person standing on this land
at a point nearest to the town and shouting at the top of his
voice cannot be heard from the town. Muhammad Ibn al-
Hasan, on the other hand, holds that a piece of land is
waste if it can not be utilized, whether it is near or far
from a town. According to al-Kasani * lands located with-
in towns are never considered " waste."

A piece of land, in order to be waste land, must further-
more be the property of no one, for if a piece of land is
known to have a present owner, whether a Moslem or a
dhimmi. it is not considered waste, even if it has been liter-
ally waste for ages. On the contrary, a piece of land is
considered waste if at present its owner is not known,
whether the land has lain waste without an owner from
time immemorial, or whether it was at one time under cul-
tivation before it later went to waste, before or after Islam.
This is the view of Abu Hanlfah. However, according to
his disciple, Muhammad, if the land is known to have had
an owner at some time since the advent of Islam, whether
or not the present owner is known, the land is not treated
as waste, but belongs to the Moslem community at large.
According to al-Shafi'i, such lands, whether or not their
present owners are known, are not waste, that is, they do
not become private property by being developed for cultiva-
tion (ihyd'), etc. According to al-Mawardi, the reason
why lands which have lain waste from pre-Islamic
times, such as the lands of 'Ad and Thamud,1 are treated as

1 Vol. vi, p. 194.

5 Ancient Arabian tribes. The adjective 'ddi, derived from 'Ad, is
used by the doctors in the sense of what has been from time immemo-
rial (qadim').

502 MOHAMMEDAN THEORIES OF FINANCE

waste lands is the hadith : " The lands which come from 'Ad
('adi al-ard) belong to God and to His Prophet; then they
are given to you (i. e., the Moslems) from me." According
to the Malikites,1 waste lands are lands which have not
become private property (ikhtisds) through purchase or
through some other method of acquisition, or by being de-
veloped (ihya') for cultivation, etc. ; or by being the harim
of developed lands, such as the pasture lands which are the
harims of a village, or such as the harims of springs, trees
and houses; or by being given in concession (iqtd() by the
imam; or finally by being reserved (hima) by the imam as
pasture land, etc., for common use.

Abu Yusuf,2 true to his definition of a " waste " land,
does not allow to the imam the concession of waste lands
which are near a town within the distance mentioned, be-
cause, he argues, such lands are apt to be used by the towns-
people as meadows, etc. Muhammad Ibn al-Hasan, how-
ever, allows the concession of such lands, if they are not
used by the town folk in some way, e. g., for getting wood
or pasturing; on the contrary, he does not allow the en-
closure of lands for private use, if they are used by the
town people, no matter how far from the town the lands
are situated. According to the Malikites,3 the imam may
give away in concession even such waste lands as are used by
village people as pasture land and wood land (muhtatab).

When a piece of land coming under the description of
waste as above explained is developed (ihya') by a person,
it becomes his property. According to the Hanifites, such
person may be a Moslem or a dhimmi, but according to the
Shafiites, and, as regards waste lands situated in the vicinity

1 Kharashi, vol. v, p. 66; Dardlr, vol. ii, pp. 181-2.
1 Majtna', vol. ii, p. 437.
1 Dardir, vol. ii, p. 181.

PUBLIC DOMAIN

503

of towns, also the accepted Malikite views, only a Moslem
may acquire the ownership of waste lands by development.
The Malikites, however, allow the dhimmis equal rights as
regards waste lands distant from towns.1

According to Abu Hanifah, a person acquires property in
a piece of land he developed only in case he had beforehand
obtained the permission (iqta' or idhn) of the imam to de-
velop it. According to his two disciples and to al-Shafi'i,
the permission of the imam is not necessary. Finally, ac-
cording to the Malikites,2 permission is necessary only as
regards waste lands situated in the vicinity of towns. The
ground for Abu Hanifah's view is the hadith : " A person
owns only what pleases his imam ". Besides, lands are a
kind of booty obtained from unbelievers and like all booty,
no part of it may be owned without permission from the
imam. The ground for the opposite view is another hadith
to the effect that a person owns the land he has developed
because lands, like game, are free property (mub&h)*

There is dispute as to the technical meaning of the word
ihya (development). According to the 'Indyah, as quoted
in the Bahr, ihya' consists in ploughing and irrigating the
land ; either one by itself being insufficient According to
the Kofi, either one of them is sufficient. According to
Abu Yusuf, ihya' is building, or sowing, or ploughing, or
irrigating. According to one report from Muhammad Ibn
al-Hasan, ploughing is not ihya', unless followed by sowing.
According to the Mabsut* ihya consists in rendering the land
fit for cultivation by ploughing, or building water channels,
or digging a canal leading to it. According to the Majallah*

1 Majma', vol. ii, p. 436; Minhdj, vol. ii, p. 171 ; Dardir, vol. ii, p. 183.

1 Kharashi, vol. v, p. 70.

s Hiddyah, vol. ix, pp. 3-4. 4P. 168.

5 Article 1051 ; also arts. 1275, 1276.

504

MOHAMMEDAN THEORIES OF FINANCE

ihya' consists in rendering land fit for cultivation. Accord-
ing to al-Mawardi, the exact meaning of ihya is fixed by
reference to the purpose for which the land is developed in
accordance with custom, since the Prophet has left it un-
determined. Thus if the land is intended for residence, it is
considered " developed " (ihya) if a covered building is
erected on it, since that is the minimum necessary for use as
residence. If, on the other hand, the land is developed for
cultivation, then three things are required : ( I ) The land
must be marked off on all sides by heaping up earth. (2)
The land must be irrigated, if it is dry, and drained if
marshy. (3) The land must be tilled (harth) ; but it is not
necessary that it should be sown or planted, any more than
that the house should be actually inhabited. Al-Shafi'i, as a
counterpart to his distinction between concession of owner-
ship and concession of usufruct, distinguishes between the
ihyaf which results in the ownership of the thing developed,
and the development which is not customarily called ihya'
and produces a tithe of usufruct only. Thus if a nomad
tribe puts up tents or wooden huts it is not a case of ibytf,
and the tribe does not acquire the ownership of the ground
but is only entitled to its use until it leaves the place. Finally.
according to the Malikites, ihya' consists in providing a
means of irrigation, or draining, or putting up a building,
or plantng, or tilling, or clearing the land from trees, or
leveling the ground. It does not consist in enclosing the
land with a wall, or using it for grazing.

When the imam makes a concession (iqta'), of waste
land to a person, such person acquires a title to the develop-
ment of that land as over against others, and in this, al-
Shafi'i agrees with Abu Hanifah. The concessionaire,
however, does not acquire the ownership of the land before
developing it. If he fails to do so, he does not own it, but
he nevertheless has a title of possession (yad) to that land,

PUBLIC DOMAIN 505

as over against others. If his failure is due to an evident
cause, the land is left in his possession until the disappear-
ance of the cause. If he had no excuse for his failure, ac-
cording to Abu Hanifah he is not molested during three
years from the date of concession, but, should he fail to
develop the land within that time, the concession becomes
null and void, and the land reverts to the status of waste.
This term of three years is based on a precedent of Omar.
According to al-Shafi'i, Omar's precedent is not binding
as it was meant for a special case, and the length of the
term is determined by the possibility of development. Con-
sequently, if the concessionaire fails to develop the land dur-
ing a long enough term, he is required either to develop
the land, or to forfeit his title to it in order that the land
may be granted to others.

If, during these three years, the land is developed by some
one other than the concessionaire, according to Abu Hani-
fah, the land still belongs to the concessionaire. The case
is otherwise, however, if it was developed after the three
years. According to al-Shafi'i, the land in either case be-
longs to the person who developed it.

According to the Malikites,1 the concession (iqta') by the
imam of waste land in and of itself results in its becoming
the property of the concessionaire, even if he fails to de-
velop the land or neglects it after development. If, how-
ever, a piece of land was acquired by development (ihyft'),
it may not be allowed to lie waste for a long time, for
should such land be meanwhile developed by a third party
it becomes the property of the latter. According to a re-
port from Ibn Rushd, if in the above case the third party
developed the land shortly after its neglect by the first de-
veloper, the latter continues to own the land, but the third

1 Dardlr, vol. ii, p. 182; Kharashi, vol. v, pp. 66, 69; 'Adawi, vol. v,
P. 67.

506 MOHAMMEDAN THEORIES OF FINANCE

party must be compensated for the standing (qaimah)
value of his development, if he was not aware of the fact
of previous development ; otherwise he is compensated only
for the value of his development as removed from its posi-
tion (maqlu'a).

According to al-Shafi'i, when a person develops a piece
of land he acquires a title of ownership not only to the land
so developed, but also to such adjoining land as is indispen-
sable for the full use of the land developed. For instance,
he is entitled to a way, to a courtyard (/ma'), to channels
for drainage and water, etc. These rights are designated
under the collective term of harim, which is defined by the
Rawd ol-Talib * as the immediate environment necessary for
the full use of a property. According to the Hidayah, the
harim of a land developed for planting trees is five cubits
on every side.

If a person, instead of developing a piece of land, con-
tents himself with the initial stages of development known
as tahjir (literally, enclosure), marking off the land by
placing stones all around it, in order to indicate his inten-
tion of development,2 according to the Minh&j, he becomes
entitled (ahaqq) to this land as against others, but he may
not sell it, and should another develop it the latter owns it.
If the encloser unduly delays the development of the
land, he is required by the sultan to develop it within a
short time or forego his rights. According to the Hanifites,
the encloser acquires a priority with respect to the land for
three years, but only as a matter of religion (diyanah), so
much so that if another person should develop it mean-
while he acquires the land. After the lapse of the three

1 Ansari, vol. ii, p. 445.

1 According to the Hanifites, tahjir consists in marking off the land
by placing stones or sticking branches all around, or by burning the
dry herbs grown on the land, etc.

PUBLIC DOMAIN 507

years, the land is given to others in order that it may become
a source of tax revenue. This term of three years is based
on the precedent of Omar who desired to check the prac-
tice of enclosing land and not developing it later.1

According to the ' Alamkiriyyah and the Majallah, if the
imdm permits the development of a piece of land on condi-
tion that the person developing it shall be entitled to pos-
session alone, the land does not become his property.3
Cultivated Lands. These are of two kinds :
(a) Those whose owners are definite and known persons.
The imam has no jurisdiction over these lands,3 whether
owned by Moslems or by dhimmis, if they are situated in
the Moslem state, except in so far as they are subject to
taxes. If, however, these lands are situated in the country
of the enemy over which the Moslems have not as yet ex-
ercised rights of possession (yad) and the imam wishes to
make a concession of them which will be valid when such
lands shall have been conquered, it is lawful. There are
instances of such concessions made by the Prophet him-
self. Thus Tamim asked the Prophet to give him in con-
cession the springs of the city of Damascus, before the city
was yet conquered, and the Prophet granted his request.
Again, the Prophet made concession of land in the Byzan-
tine empire to al-Khushni upon his request. The same
rule applies if a person is presented with wealth or

1 Yahya, p. 66. The Hanifite texts are very confusing on the matter
of enclosures. Most of them suggest, and some explicitly state, that an
enclosure, to entitle to priority for three years, must have been based on
a permit (iqta). The Mabsut, however, on which later works are largely
based, clearly suggests the opposite, and the Jdmi' expressly states that
permission is immaterial. The Majallah, finally, is conceived clearly in
this same spirit. This is also in accordance with history, as appears
from Yahya.

1 Cf. Kharashi, vol. v, p. 69.

* Cf. t/wm, vol. iii, p. 273.

ro8 MOHAMMEDAN THEORIES OF FINANCE

women or children belonging to enemies. All these gifts
and concessions are valid when the conquest is made. If
the conquest is made in the way of peaceful agreement, the
things made presents of are excluded from the effect of the
terms of peace. If, however, the conquest is made by force
of arms then the army is not compensated for these presents
if they knew about them; otherwise the imam must satisfy
them in some way. Abu Hanifah says that the imam need
not do so, when there is public benefit in excluding certain
things from the spoils.

(b) Cultivated lands whose owners are not known. These
are of three classes: (i) Lands which are set apart by the
imam for the public treasury (bayt-al-mal) either because
they came to belong to the state as its one-fifth share in the
spoils of war, or because the imam reserved certain lands
for the public treasury, the army being compensated for it
otherwise. For example, Omar reserved for the public
treasury from the lands of Sawad the lands owned by the
Persian king (kisra) and by the members of his dynasty, and
the lands whose owners had fled or perished. The rentals
of these lands amounted to nine million dirhaws, and
were spent for the Moslem cause in general. Omar did
not give any of these lands in concession. Later 'Uthman,
his successor, leased them (iqta i jar ah) because he thought
that it would be better from the standpoint of yield to
place them in private hands by iqta' rather than to have them
lie idle, it being a condition of the lease that the lessees would
pay the rights of the public (haqq al-fa'y). This was there-
fore a case of concession of usufruct, not of ownership of
the land, and in this way the rentals increased, until they
reached, as is alleged, fifty million dirhams. 'Uthman made
his presents and gifts out of these sums. Things continued
in this way until the year eighty-two, when during the re-
bellion of Ibn al-Ash'ath, the registers were burnt and each

PUBLIC DOMAIN 509

people took possession of the lands situated in their neigh-
borhood.

It is not lawful to alienate the ownership of the public
in these lands, because such lands by being reserved by the
imam for the public treasury have become the property of
all the Moslems and hence mortmain (waqf) forever.

The Malikite view of the matter is similar.1 However,
according to the Hanifites, who do not require the constitu-
tion of these lands into waqf property, it is allowable for the
imam to give them away in concession.2

With regard to these lands, the imam has the right, with
a view to insuring the best interests of the Moslems, to do
one of the following two things : To have them cultivated
on account of the public treasury (yastagilluhu li bayt-al-
mal), as did Omar; or to leave them to persons who possess
the ability to improve them, subject to payment of kharaj
fixed according to the amount of the produce as did 'Uth-
man, and in this case the kharaj collected from these lands
is in reality their rental* and is disbursed for works of

1 Kharashi, vol. v, p. 69.

* Yusuf, pp. 32-3.

* This practically amounted to a complete alienation of the ownership
of the public treasury in these lands, the right of the state consisting
simply in the khardj collected from these lands. According to the
Mugni (vol. iv, pp. 216-17; Mawardi, pp. 302-3), a Shafiite work, in
the case of the lands of Sawad, for reasons of public interest, analogy
was departed from in that they were leased by the calif Omar under a
perpetual lease (ijdrah mu'abbadah), the khardj collected from the
landholders being the rental. The author adds that although the land-
holders, being tenants, may not sell their landholdings, they may never-
theless lease them for short periods ; furthermore, that the lands may
not be taken away from their holders; finally, that the lease is not
dissolved upon the death of the holders but devolves in favor of their
heirs. Al-Shafi'i (Unun, vol. iii, p. 240; compare supra, p. 377 fn.)
at an earlier date had considered the nature of the landholder's title to
these lands as a case of qabdlah. It is, therefore, very probable that
the claim of al-Mawardi that these lands continued to remain the

510 MOHAMMEDAN THEORIES OF FINANCE

general utility, unless the lands were taken over by the state
by virtue of its one-fifth share in the spoils, in which case
the rental is disposed of to the beneficiaries of that share.

If the kharaj imposed in this case is a half-and-half
proportion of the fruits or the crops, it is lawful in the
case of dates, following the example of the Prophet who
had entered into an agreement (musaqat) with the people of
Khaybar on the condition that they would pay to the
Prophet half of the produce of their date trees. As re-
gards crops (zar'), there is dispute among the doctors,
those who do not allow the mukhabarah system objecting
to it. Some say that the proportional kharaj may be
levied on the crops even if the mukhabarah system in their
respect is not lawful, because there is a public benefit in
levying the proportional kharaj and therefore in their case
the law concerning private relations may be departed from.

(ii) The lands subject to the payment of kharaj. The
ownership of these lands may not be ceded, because

property of the state and that the cultivators were merely tenants, if at
all true, was so only in theory. (Cf. Caetani, vol. v, pp. 392-433;
Berchem, p. 5, fn. ; Worms, Journal asiatique, 1842-4.) Turkish his-
tory offers two striking parallels in this line, — the so-called domanial
lands (arddi amiriyyah), and the waqf (pious foundation) estates
known as ijdreteynli awqdf. Although theoretically the ownership
(raqabah) of these two classes of property is vested in the state
(Young, vol. vi, p. 45) or in the waqf (ibid., p. 115), respectively, and
their holders are considered by the Turkish jurists as mere tenants
(Husni, pp. 92-3), the latter nevertheless practically own them. The
property rights of the state and the waqf were still further weakened
by the laws of 1867 and 1875, which extended the right of inheritance
to their holders to a considerable extent. However, the fact that in
theory the present holders are only tenants constitutes a real handicap
for the holders when they want to transfer or use their lands as secur-
ity for loan. One of the many problems to the solution of which the
Turkish Government has turned its attention since the recent restora-
tion of the Constitutional Regime has been the complete assimilation
of the domanial lands and the waqf properties to properties owned in
fee simple (milk}, — at least in their practical aspects.

PUBLIC DOMAIN

either they are mortmain lands and then the kharaj levied
on them is in reality a rental, and being mortmain they
may not be alienated, or they are private property and in
that case the kharaj levied on them is a sort of jizyah, and
again they may not be alienated, since their ownership is
vested in definite private persons. The Hanifite and Mali-
kite views are to the same effect.1

(iii) Lands whose owners have died without leaving
rightful heirs to inherit. Such lands devolve to the public
treasury, as inheritance by the Moslems at large, and there-
fore they are spent in the interests of the Moslems at large.
Abu Hanifah says that such property is disbursed to the
poor only as an alms from the deceased to them; al-Shafi'i,
however, does not agree with this view because, as he argues,
by entering the public treasury these properties have lost
their private character and have become the property of all
the Moslems.2

Mines.3 These are exposed or concealed. Exposed
mines are those in which the mineral deposits are visible,
like coal, salt, tar, naphtha, etc. These are like water, whose
grant is not allowed; all persons being equally entitled to
their use. The person who first lays hold on them owns
them. The concession of exposed mines, therefore, has no

1 Cf. Yusuf , pp. 32-33 ; Kharashi, vol. v, p. 66.

8 Al-Mawardi has probably in mind here such lands as were owned
in fee simple (milk) by Moslems and upon their death devolved to the
state. For such of them as were owned by dhintntis, according to the
prevalent Shafiite view, become fa'y and may not be disbursed for
purposes of public utility excepting the share of tnasdlib set apart from
them. Abu Hanifah's opinion, as quoted by al-Mawardi, also involves
a certain contradiction ; for, as we already saw, in the chapter on
Public Treasury, according to the current Hanifite view, lands devolv-
ing to the state from dhimmis become fa'y, while those devolving from
Moslems are disbursed to widows, etc.

* Mawardi, pp. 341-3; Umm, vol. iii, p. 265; Angari, vol. ii, p. 452;
cf. Minhdj, vol. ii, p. 178; Tanbih, p. 155.

MOHAMMEDAN THEORIES OF FINANCE

legal effect and the grantee and others are equally entitled
to them, and hence the concessionaire may not prevent
others from helping themselves to the mines, and he may
do the same himself. The Hanifite view is to the same
effect.1

Concealed mines are those whose deposits are hidden
under ground, and may be reached only by means of labor;
such as mines of gold, silver, copper, iron, etc., whether or
not the ore extracted needs smelting and purification. Con-
cerning the concession of such mines there are two views :
One view is that, as in the case of exposed mines, their con-
cession is not lawful, all men being alike entitled to them.
The other view is that the concession is valid in consequence
of what has been related of the Prophet, namely, that the
Prophet made a grant of certain mines to Bilal Ibn al-
Harth. According to this second view, the grantee acquires
a right of priority (ahaqq) to these mines and may prevent
others from encroaching on his right. As regards the legal
status of the concession, some hold that the mines become
the property (raqabah) of the grantee, it being a case of
iqta' tamlik (concession of ownership), irrespective of
whether the grantee exploits the mines or leaves them idle,
provided he has already had work done on them. There-
fore, he may sell them and upon his death they devolve to
his heirs. Others contend that it is a case of concession of
usufruct alone (iqtaf irfaq), and that, therefore, the grantee
does not acquire the ownership of the mines but only the
right to exploit them and to prevent others from using them
during the time that he is working the mines, but as soon
as he abandons the mines the concession ceases to be ef-
fective and the mines become common property (mubtih).
Al-Shafi'i,2 in subscribing to this second view, observes

1 Durr, p. 709. * Umm, vol. iii, p. 267, 1. — 17.

PUBLIC DOMAIN

that apparently the ground for it lies in the fact that mines
are natural wealth lying in the ground and that no art at-
taches to them when a part of them is extracted and
smelted by men, that consequently one should be entitled
to them only in so far as he exploits them. Al-Shafi'i
further observes that the sultan, in giving a mine away,
should expressly stipulate that the concessionaire shall
pay the zakat that will be due on the mines he is to operate,
that he shall be entitled to the mine only so long as he
operates it, and finally, that he may not sell it to others.

If a person improves a tract of land, whether or not
such tract has been granted to him, and in the process of
improvement mines are brought to light, whether they are
exposed or concealed, they become the property of the im-
prover forever, exactly as springs and wells would belong
to the person who discovered or dug them up. According
to the Malikites,1 the imam has full authority over the dis-
posal of mines.

Hima, or Reservations for Public Use.2 Hi ma is the act
of preventing the enclosure (ihya) of waste lands for pri-
vate ownership, in order to insure their perpetual reservation
for common use, for the grass that grows on them and for
grazing cattle. In fact the Prophet did reserve in Medina
a stretch of land one by six miles large for the use of the
horses of the Helpers (ansdr) and the Emigrants (muliajir).
Al-Shafi'i, following the precedents of the Prophet and
Omar, says that a reservation must redound to the benefit
of all the Moslems; that the poor people living near the
reservation may graze their cattle on it, though not the rich
people; that the imam grazes on the reservation grounds
only those of his animals which are used in the holy war;

1 Kharashi, p. in.

1 Mawardi, p. 322; cf. Umm, vol. iii, pp. 270-2; An§ari, vol. ii, p. 449;
Kharashi, vol. v, p. 69 ; Dardlr, vol. ii, p. 182.

MOHAMMEDAN THEORIES OF FINANCE

finally, that the grounds were and should be used for the
grazing of the horses and camels used in the holy war, the
cattle collected as jigyah, the remainder of the sadaqah cattle,
and a few stray cattle.1 As regards reservations made by
the successors of the Prophet, if they have extended them to
all the waste lands or the greater part of them, it is not law-
ful ; or if they have made the reservation in favor of some of
the Moslems, or the rich among them, it is also unlawful ; but
of they have made reservation in favor of all the Moslems, or
the poor and the indigent, in one opinion, the reservation is
not valid, inasmuch as the right to make reservations be-
longed to the Prophet alone, who in making the reservation
above-mentioned, said : " There is no reservation except for
God and His Prophet". According to the other opinion, the
reservations made by the successors of the Prophet are
valid, as were those made by the Prophet himself, inas-
much as the Prophet made these reservations for the benefit
of Moslems, not for his own private interests, and, there-
fore, those who came in the Prophet's place as regards
Moslem interests, are equally entitled to make reserva-
tions. Consequently, the meaning of the Prophetic say-
ing : " There is no reservation except for God and His
Prophet ", is that there may be no reservation except for
the benefit of the poor and the indigent, and in the interests
of the Moslems in general, as contrasted with what used
to be the case in the pre-Islamic times when the strong re-
served the land for their own particular use.2

1 According to a report from Malik (Zarqani, vol. iv, p. 247), the
number of such cattle pastured on reservation grounds during the
califate of Omar was forty thousand.

2 It is related that Kulayb Ibn Wall used to take a dog to an elevated
place and let him loose, and then reserve for his own use all the land
for a distance as far as the yelping of the dog could be heard in every
direction, the outlying land being used by others in common. 'This is
alleged to have resulted finally in his murder. Cf. Umm, vol. iii, p.
270.

PUBLIC DOMAIN

If the reservation has been made for the benefit of all,
then all persons, rich or poor, Moslems, or dhimmis, have
equal rights to pasture their horses and cattle in the reser-
vation grounds. If, however, the reservation has been
made for Moslems alone, then only Moslems, both rich and
poor can use it. On the other hand, if the reservation has
been made for the poor and the indigent alone, the rich and
the dhimmis are barred from its use. It is not lawful to
make a reservation for the rich alone, leaving out the poor,
or for the dhimmis alone, leaving out the Moslems. Again,
if a reservation has been made for the animals of sadaqah
alone or for the horses of the soldiers alone, other cattle
may not be pastured on the reservation grounds.

The restrictions established as to the persons who might
use the reservation grounds continue in force, but if a re-
servation in favor of a special class should be sufficient for
the whole population, then the whole population is allowed
to use the reservation grounds, but a reservation made for
all the people may not be restricted to the rich alone on the
ground that the reservation grounds are not sufficient for
all. As to whether in this last case the reservation may be
restricted to the poor alone, there have been two different
opinions.

When a piece of land has been already converted into a
reservation and later a person, disregarding such reser-
vation, encloses it for his own private use, in case the reser-
vation is one that has been made by the Prophet himself,
the act of enclosure is unlawful and the interloper is ousted
from the land. Especially is this true when the reasons for
which the reservation was made still exist, since the act of
the Prophet may not be set aside. If, however, the reser-
vation had been made by one of the imams after the
Prophet, then one view of the matter is that later enclosure
is unlawful just as in the case of the reservations made by

516 MOHAMMEDAN THEORIES OF FINANCE

the Prophet himself, but the other view of the matter is
that the reservation is overruled by the act of enclosure
and the land becomes the private property of the person
who enclosed it, since the Prophet said explicitly : " He who
develops waste lands becomes their owner ". Moslem
rulers are not allowed to take money for the use of pasture
lands, whether waste or reservation lands, because the
Prophet said : " The Moslems are partners in three things :
water, fire, and grass ". Al-Shafi'i x says that if a person
who is not entitled to graze his cattle on the reservation
grounds does so, the most that can be done is to prevent
him from grazing his cattle, and that he is not punished or
fined for it.

According to Abu Yusuf,2 forests belonging to no per-
son may be used by every body for picking up fire-wood,
and this is true if it is not known that the forest is private
property. This applies also to meadows (marj) and wild
fruits and honey; that is, every one is entitled to help him-
self to them. In the case of meadows, people are entitled
to their use even if the meadows should be private prop-
erty.3 According to the Malikites,4 one may not use grass
growing on private meadows, but one may use grass (kola)
growing on lands left uncultivated, provided it does not
cause the land owners any damage.

Woodlands (mithtatab) and pasture lands in which the
people of a village are known to pick fire-wood and pasture
their cattle are the exclusive property (milk) of those people,
and therefore they may exercise in their regard all the rights

1 Umm, vol. iii, p. 272.

2 Yusuf, pp. 58-9.

* Apparently this is on account of the hadith to the effect that in
water, fire and grass all Moslems are partners.

4 Kharashi, vol. v, p. 77.

PUBLIC DOMAIN

of property and prevent others from their use. They should
not, however, use this right if the woodlands and pasture
lands in question are more than sufficient for their needs and
consequently no prejudice would result in allowing their
use to others.1 The Malikites apparently agree with the
Hanifites in granting the village people the exclusive use
of their woodlands and pasture lands, for they consider
them as the harim of the village. They nevertheless grant
the imam the right to make concessions of such lands
(iqta') to individuals, should the public interest require it
(bi 'l-nazar).2

The doctors discuss fishing and hunting from a purely
religious standpoint, e. g., whether or not the devotional
formula (tasmiyah) : " In the name of God the merciful
and the Clement " should be pronounced before the act of
fishing or hunting, or when the meat of the game is "clean"
for eating purposes, etc. The relation of the subject to the
state is not discussed at all. It would appear from the general
trend of the discussion that the matter escaped entirely the
control of the state, except in so far as the failure of the
Moslems to fulfill their religious duties, namely, the fard,
ivajib, sunnah, etc., came under the cognizance of the muh-
tasib or public inspector, who was appointed in order to see
that those duties were performed and the delinquents pun-
ished.3 These purely religious views will not therefore be
discussed here beyond stating that in general fishing and
hunting were allowed (ja'is), as between the fisher or
hunter, and God.4

1 Articles 91, 97, 100 and 105 of the Ottoman Land Code (QdnHn-
ndtneh Arddi) have been framed in practically the same spirit.

a Dardir, vol. ii, pp. 181, 183.

8 See Mawardi, pp. 404-32, also 375-4°3-

4 It was already explained in Part I (chapter on Classification of the
Shan'ah Values) that the doctors distinguished between the predomi-

5i8 MOHAMMEDAN THEORIES OF FINANCE

Water.1 Following the hadith according to which the
Moslems are partners in water, fire and grass, water is con-
sidered as res nullius (mitbah) and belongs to the person who
" occupies " (ihraz}- it, but it is not considered " occupied "
until it has ceased to run, that is, until it is placed in a vessel
or a water-tight well or basin. Consequently, water found
in conduits, and rivers, or in wells and basins which are not
water tight is considered as res nullius (mubah) even if the
conduits, river-beds, wells or basins should be private prop-
erty.8 A fortiori this is true of water found in lakes and
seas. Such water therefore as has not been " occupied " is
the common property of all, and every one is entitled to its
use for drinking purposes (shafah), whether for himself
or his animals, provided, however, the animals do not ex-

nantly religious and the predominantly worldly or legal values. The
distinction often expressed in the Hanifite books by the use of the two
words diydnah and qatfd' is along the same line. Thus it may be one's
religious duty to do a certain thing (diydnah} although one might not
be forced judicially (qadd') to do it. For details on hunting and fish-
in, see Majma', vol. ii, p. 450; Hiddyah, vol. ix, p. 42; Majallah, art.
1292 et seq; Minhdj, vol. iii, p. 293; Dardir, p. 173; Kharashi, vol. v,
p. 77; Ibn Rushd, B., p. 368. For details concerning diydnah and the
state enforcement of the sharl'ah values, see Tech. Diet., p. 503; Ma-
wardi, pp. 118, 128, 134-40, 141-2, 160, 375, 376-8, 378-81, 404-8.

1 Mabsiit, part xxiii, p. 161 ; Majma', vol. ii, p. 440 ; Yusuf, p. 53 ;
Hiddyah, vol. ix, p. 12; Durar, p. 186; Durr, vol. ii, p. 710; Babr, vol.
viii, p. 242; 'Alamkiriyyah, vol. v, p. 580; Kasani, vol. vi, p. 188; /ami',
vol. ii, p. 281; Majallah, arts. 1262 et seq.; Mawardi, pp. 313-22;
Ansari, vol. ii, p. 453; Wajiz, p. 243; Minhdj, vol. ii, p. 179; Kharashi,
vol. v, p. 73.

1 Ihrdz legally means the act of occupying a thing which is common
property and does not belong to any one person in particular (mubdh*) ;
it may be actual or hypothetical. The latter consists in preparing the
means of actual occupation, as in the case of collecting rain in a vessel
placed outdoors for that end. (Majallah, art. 1248.)

* Yusuf, p. 55, 1. 17; Mabsiit, part xxiii, pp. 164-5; Kasani, vol. vi, p.
188, 1. — 2; I ami', vol. ii, p. 281; Path al-Mu'in, vol. iii, p. 416; cf.
Majallah, art. 1251; Mawardi, p. 319.

PUBLIC DOMAIN

haust the entire supply of water. Moreover, it is not per-
missible to sell such water, or rent its use, since it is res nul-
lius. The owner of the adjoining land, however, may pre-
vent people from using it, if they can obtain drinking water
elsewhere. In the contrary case, the owner of the land
is asked either to grant a right of passage, or to fetch some
water himself. If he fails to do so, he may be forced by
use of arms. The right of drinking extends even to the
case of water already " occupied ", provided that the per-
son who " occupied " it, has more water than he himself
needs. In this last case, however, the person asking for
water, in taking it by force, may not use arms, and, further-
more, is obliged to pay the price of the water he used.1

According to the Malikites,2 the water of privately owned
wells, basins, springs, and rivers is considered like privately
owned water, such as water contained in a vessel. The
owner of such water may prevent others from its use and
may even sell it, although he is recommended to allow its
free use. He is, however, obliged to allow its use, if there
is danger of death from thirst.

This unconditional right to use, as regards water that has
not been occupied by any one, such as water found in
basins, wells, rivers, etc., is limited only to use for drink-
ing or cooking purposes, because use for irrigation or other
similar purposes is conditioned upon the nature of the water
as follows:

(i) Water of seas or the great natural rivers, such as
the Euphrates, the Tigris, etc. Such water may be used
by every one, for irrigation, turning mills, and otherwise.
And every one may divert a river from them. According
to the Mabsut,3 the use of the river is not allowed if the
diversion of part of its water lessens its water to a degree

1 Mabsut, part xxiii, p. 166. * Kharashi, vol. v. p. 73-

* Part xxiii, p. 178.

MOHAMMEDAN THEORIES OF FINANCE

prejudicial to acquired interests, or if the use of its water
for power involves the danger of overflow, should the dam
later break.

(2) Water of small natural rivers. If the people of a
village desire to divert part of the water of such a river to
their lands, they may do so only if this does not prejudice
the interests of the earlier settlers (ahl). According to
al-Mawardi these latter may irrigate their lands whenever
they need to do so, unless the level of the river is not high
enough for irrigation, and needs to be dammed. In such
case, the landowner situated highest up the river dams the
river and draws off the water needed first, then the one
next to him, and so on down the line. As regards the
amount which each owner may draw off before allowing
the water to go to the next owner, the Prophet is said to
have allowed a level as high as the ankles, but al-Mawardi
remarks that the Prophet's precedent was meant for the
particular case in question, and that the amount varies with
the nature of the land, the kind of crop, the time of sowing,
the season, and the consideration whether the river is per-
manent or intermittent. The Hanifites, on the basis of a
hadith related by Ibn Mas'ud, hold that, on the contrary,
the right to dam the river first belongs to those situated
lowest, and as, regards the hadith in question, they dispose
of it on the ground that it applies to cases where the water
is abundant-1 According to the Malikites,2 the settlers situ-
ated higher up the stream irrigate their lands first until the
water rises as high as the ankles. If, however, settlers
situated lower had developed their lands earlier, and there
is danger of their crops being destroyed should they come
after those situated higher up the stream, they come before
the latter.

(3) Water flowing in artificial beds, such as the water

1 Mabsu}, part xxiii, p. 163. a Kharashi, vol. v, p. 76.

PUBLIC DOMAIN 52i

of a river or canal dug by the people of a village, or the
water of wells and pools. Such water is the exclusive right
of the owners of the bed and others may not use it for irri-
gation, even if the water should be amply sufficient for all.
The expenses of dredging or repairing the natural rivers
falls upon the public treasury, if there are funds in it;
otherwise, it is assessed on the people. According to the
Hanifites, in the case of the rivers which are owned, the
expense is upon the owners, and if the river is not of the
" private " (khtiss) kind, the owners are forced to contribute
to the expense. The doctors disagree as to the meaning of
" private ", some saying that the term may be applied to a
river owned by forty persons, others, by one hundred, and
still others, by one thousand. The view recommended by the
'Alamkiriyyah l is that this matter should be left to the de-
cision of the mujtahids. As regards the mode of assess-
ment, according to Abu Hanifah each landowner contributes
equally to the expense only for the part fronting on his
land and above it, not for the part below it, but according
to his two disciples, the entire expense is assessed on all the
partners in proportion to their shares. The argument of
the latter is that each partner benefits from the entire
river, since even those situated up JJie stream need the
lower part of the stream for the drainage of the surplus
water after the irrigation of their land. Abu Hamfah's
argument, on the other hand, is that the expense of dredg-
ing is assessed in consideration of the right of irrigation,
and this right is not furthered by the dredging of lower
parts of the river. As regards the drainage of the surplus,
one need not concern himself about it. Moreover, one
might turn off the stream at a point further up the stream,
should that be necessary.2

1 Vol. v, p. 579-

1 Mabsiit, part xxiii, pp. 173-4.

For details on the subject of waters, consult the sources indicated,
also Durar al-Hukkdm (esp. vol. iii, pp. 5*6, 5*7, 537) and Bruno.

522 MOHAMMEDAN THEORIES OF FINANCE

Markets, Schools, Mosques, Inns, Streets, and Other
Public Domain.1 The Hanifite texts do not consider this
subject unless it be incidentally, e. g., in connection with
the treating of encroachments on public roads.2 The Sha-
fiite texts, on the other hand, devote to it special sections
under such titles as Common Benefits (manafi' mushtara-
kah), or Irfaq and Irtifaq, meaning by the latter two words
the granting and the enjoyment of the use of a thing re-
spectively, as contrasted with the ownership in that thing.3

The general principle applying to the public places in
question is that the person who came first is entitled to
their use on condition that he respects the rights of the
others, and that his title lapses as soon as he gives up his
use of them. In the case of the use of roads no fees may
be charged by the imam or his governors. Here are a few
details.

Any person may sit by the road for rest or for trade
without a permit from the imam, and he may protect him-
self against the sun by a mat or the like, provided that in
doing so he does not obstruct the traffic. Some say that the
dhimmis do not enjoy this privilege, but others hold the con-
trary view- The imam may grant to a person the use of a
part of the road for trade purposes, but he may not charge
a fee for it, neither may he grant the ownership (iqta' tam-
llk) of that part. According to al-Mawardi, in the absence

1 Mawardi, pp. 325-9; Ansari, vol. ii, pp. 449-52; Minhdf, vol. ii, p.
176; Wajiz, p. 242.

1 Cf. Majmae, vol. ii, p. 512; Majallah, arts. 1254 et seq.

* The information here given is derived almost entirely from the indi-
cated Shafiite sources, since the Hanifite views on this subject are
isolated and incidental. Suffice it to say that according to the latter,
the general principle in regard to the use of common property (mubdh)
is that every one is entitled to it on condition of not prejudicing the
general public interest. The Malikite sources are equally silent. (Cf.
Kharashi, vol. v, p. 71.)

PUBLIC DOMAIN

of a grant on the part of the imam, if a person goes away
from the place he occupied, he may not the next day claim
priority on the basis of previous occupation, but the first
comer is entitled to it. Malik holds that when a person is
well known as the occupant of a particular place, he is al-
lowed a title to that place in order to avoid dispute. Al-
Mawardi observes that although there is an advantage in
this, it would nevertheless amount to transferring streets
from the category of free things (mubah) to that of private
property (milk). The view expressed in the Minliaj con-
cerning traders is like that held by Malik, for according to
it, the occupant of a place does not forfeit his title to it by
mere departure, unless he gave up his trade, or his absence
extends for a period long enough to result in a loss of his
custom. However, a person who occupied part of the road
for rest forfeits his right by merely walking away from it.

The person who sits habitually in a place in a mosque
for rendering legal opinions (fatwa) , or teaching, or follow-
ing the lectures of a teacher is like the person who occupies
a part of the road or market for trade. If, however, he is
occupying the place for prayer, he forfeits his place by de-
parting from it. Nevertheless, if he went away for a neces-
sity and intends to come back, he does not forfeit his title
for the prayer-meeting in question even if he did not leave
his coat to indicate his intention. According to al-Mawardi,
in the case of the great mosques and worshiping places,
the muftis, etc., may not occupy a place in them without the
permission of the imam, if the custom is to that effect.
According to Malik, if a mufti, etc., is known to sit in a
certain place, he is entitled to it. Al-Mawardi holds that
he forfeits his right by going away from it. Al-Ansari
and al-Gazzali, on the other hand, agree with Malik.

According to al-Mawardi, people may use the courtyards
of mosques and worshiping places, if this does not interfere

524 MOHAMMEDAN THEORIES OF FINANCE

with the religious functions; otherwise they are kept from
them, and the imam may not allow them to use such places.
There is divergence of view as to whether people need the
permission of the imam for using such places. According
to Malik, as quoted by al-Kharashi, praying places (mas-
jid) situated in the desert, may in the absence of other
places be used for taking shelter in them and eating dry
food such as dates. It is not, however, lawful to engage
in irreverent practices while in such praying places, except
when life is in imminent danger.

Nomad people who travel from place to place in the coun-
try, grazing their cattle, are entitled to the place where they
camp until they leave. Such people may be allowed by
the imam to settle in a place if this is not prejudicial to the
interests of travelers.

As regards the inns, watering places, schools, and other
public buildings or pious foundations of similar nature, their
use belongs to the first comer, and may not extend beyond
the customary length of time, unless the founder of the en-
dowment stipulated to the contrary (shart waqif). When
there is no stipulation, only the faqihs may take up their
residence in the schools, although the general public may
visit them and enjoy their shelter for a short time. Ex-
cept in the case of travelers' inns, where the travelers may
not stay longer than three days and nights unless it be be-
cause of rain or bad weather, or fear of danger, the occu-
pants of public buildings are not molested while they are
pursuing the object for which the building is intended.
Thus the students lodged in an educational institution
(madrasah) are let alone until the end of their studies, or
until they give them up. Such people do not forfeit their
title by going away to attend to some necessary business.

CHAPTER XV
SUMMARY AND CONCLUSION

ACCORDING to Mohammedan theory, as already ex-
plained, the revenue of a Mohammedan state falls into the
two classes of religious and secular revenue. The religious
revenue is derived from the Moslems and is chiefly made
up of the so-called sakat taxes. The secular revenue, on
the other hand, is collected from non-Moslems especially
and consists principally in the jizyah, the kharaj, and the
fifth levied on spoils of war, mines, and treasure-trove.

According to the Hanifites, the sakat taxes comprise the
sakat of animals (sawaim), the zakat of gold and silver,
and the articles of trade, and finally, the sakat of produce
or tithe. Theoretically the sakat applies to property only
when it is productive. This theoretical limitation, how-
ever, is far less sweeping than might at first appear. In fact,
animals which are pastured are considered productive for
that very fact. Gold and silver are regarded as always pro-
ductive in virtue of their very essence. Likewise agricul-
tural produce is always assumed to be productive, since it
is under all circumstances subject to sakat. In all of these
three cases, practically according to all of the three schools
with which we have been mainly concerned, the zakat is
considered to apply to the physical identity ('ayn) of the
object as distinct from its commercial value. On the con-
trary, articles ('urud) which are not subject to sakat on the
basis of physical identity under one of the three heads men-
tioned, pay sakat on the basis of their commercial value,
and it is only with reference to them that the theoretical

525

526 MOHAMMEDAN THEORIES OF FINANCE

limitation of productivity above referred to may be said to
have had significance. Such articles are considered produc-
tive only in so far as they answer the technical description
of articles of trade, that is, only in so far as they are ac-
quired in the process of trade with the express or implied
intention of trade. When due account of all theoretical
limitations is taken, the three kinds of zakat mentioned vir-
tually reduce themselves to zakat of flocks and herds, zakat
of commercial capital, and zakat of agricultural produce or
tithe, respectively. When it is further considered that
flocks and herds and agricultural produce, on the one hand,
and commercial capital, on the other, practically exhausted
all the kinds of property then existing, it becomes apparent
that zakat in its various forms virtually constituted a gen-
eral property tax. Allowance, of course, must be made for
the above-mentioned qualification of productivity which re-
sulted in the exemption of such potential trade articles as
were intended for consumption, or at least failed to be
articles of trade ; as well as for the limitation of nisdb which
caused the exemption of property falling short of the re-
quired minimum.

With respect to collection, the most important point to
emphasize is the distinction between apparent and non-
apparent property. While the zakat of apparent property,
namely, animals and agricultural produce, is collected and
disbursed by the state, the zakat of non-apparent property,
namely, gold and silver and articles of trade, is disbursed
to the beneficiaries of zakat directly by the property owners
themselves. The zakat of non-apparent property came
under state control only in so far as the owners passed with
it the public collectors stationed on the public roads
('ashirs). Without attempting to anticipate the discussion
of the relation between theory and practice reserved for
Part TIL, let it be said here that this theoretical distinction

SUMMARY AXD COXCLUSJON 507

between apparent and non-apparent property very strongly
suggests that the Mohammedan experience with zakat as a
general property tax very closely followed that of other
people, namely, that the greater part of the tax was ulti-
mately borne by the owners of tangible as distinct from in-
tangible, or in the present case, of apparent as distinct from
non-apparent property.

The zakat beneficiaries are specified in the Koran and
in the main consist of those members of the Moslem com-
munity who need assistance, such as the poor, wayfarers,
and debtors among them. The zakat raised in a locality is
disbursed to the zakat beneficiaries of that locality. The
imam, however, may under certain circumstances disburse
the zakat of one locality to the beneficiaries of another, for
instance, on the ground that the latter are godlier. The
imam may, moreover, disburse the entire proceeds to one
class of beneficiaries to the exclusion of the others, or even
to one single individual, provided that he does not disburse
to any one beneficiary more than a certain maximum. This
maximum is a very arbitrary standard which entirely
ignores the special needs of the beneficiary.

To cite only a few of the important Shafiite and Malikite
differences in the matter of zakcit taxes, the Shafiite defini-
tion of pasture animals (sawa'im), which according to the
Hanifites are the only animals subject to zakat, is broader,
while the Malikites go even further and collect the zakat
on every animal, pastured and non-pastured. The Shafiites
take zakat largely out of state control by virtually assimi-
lating apparent property to non-apparent property. The
Malikites, on the contrary, require even the zakat of non-
apparent property to be paid to the state collector. In the
matter of disbursement, the Shafiites consider the bene-
ficiaries specified in the Koran as the real owners (musta-
hiqq} of the zakat that has been collected, and consequently

528 MOHAMMEDAN THEORIES OF FINANCE

they reduce to the minimum the power of the imam to dis-
burse the zakut according to his own discretion. For in-
stance, they do not allow an arbitrary exclusion of indi-
vidual beneficiaries or classes of beneficiaries, nor do
they allow the transfer of sakat from one locality to an-
other. The Malikites, unlike the Shafiites, give the imam
in this respect considerable power, more in fact than the
Hanifites. The amount which may be given to a bene-
ficiary, according to both the Shafiites and the Malikites, is
far less arbitrary than is the case with the Hanifites, and
makes proper allowance for the peculiar circumstances of
each case.

Of the secular revenue, the fifth levied on mines and
treasure-trove hardly deserves discussion beyond the state-
ment that mines and, in so far as it was not buried by Mos-
lems, also treasure-trove, are considered a case of spoils of
war, the fiction being that like the spoils of war they were
originally the property of the infidels and became Moslem
property by conquest. They are therefore treated like
spoils of war.

The jizyah is a poll-tax levied on the male non-Moslem
subjects of the Moslem state for their humiliation and as
payment for the security of life and property which they
enjoy; also, as the monetary equivalent of the military
service which they owe the Moslem state, but for which
their unbelief renders them unfit. Its rate varies according
to the financial capacity of the tax payer. The tax is levied
on such persons only as may lawfully be killed in war,
namely, on persons other than women, children, and monks
retired from the world, and it is abrogated upon their con-
version to Islam.

Finally, the kharaj is a tax on land in proportion to its
produce or fixed according to its area. The kharaj is levied
on the so-called kharaj lands, and this is true even when

SUMMARY AND CONCLUSION 529

the lands are owned by Moslems. The rates of kharaj are
based on the precedent of the calif Omar, and where no
precedent is available, on the tax-bearing capacity (t&qah)
of the land. Although the actual kharaj rates may never
exceed the particular rates assessed by Omar, they may be
reduced below them, should the tax-bearing capacity of the
land require it. However, the upper limit of this capacity
has been fixed at the high point of one-half of the entire
produce, because, as the Hanifite doctors are wont to put it,
" a half-and-half division is the very quintessence of jus-
tice ". As a lower limit, one-fifth of the produce has been
recommended. The fixed khar&j is levied on land irrespec-
tive of its cultivation, provided that it can be cultivated.
The proportional khar&j, on the contrary, is levied only
when a crop has been raised.

In the expenditure of secular revenue, the following two
cases are possible : ( i ) The revenue is secured through the
instrumentality of definite persons who thereby acquire
special rights to it. The spoils of war, mines, and treas-
ure-trove are of this type. They constitute the so-called
booty revenue and belong to the persons who secured them,
namely, the army, the miner, or the finder respectively, the
state's share in them being only one-fifth. This fifth is dis-
bursed according to a Koranic prescription. (2) It is not
secured through the instrumentality of any particular per-
son, and therefore inures to the benefit of Moslems at large.
Such revenue constitutes the so-called fa'y revenue and is
disbursed by the imam to meet the general expenses of the
state, such as stipends of functionaries and soldiers, con-
struction and repair of roads, etc. The kharaj and jizyah
are the principal items of the fa'y revenue.

With respect to fa'y revenue, the Shafiites require one-
fifth of it to be disbursed according to a Koranic prescrip-
tion in the same way as the fifth of booty revenue levied

530

MOHAMMEDAN THEORIES OF FINANCE

as a tax by the state. The remaining four-fifths, accord-
ing to al-Shafi'i, is disbursed by the imam for the stipends
of soldiers and for other military purposes, but according
to later Shafiites, the imam may disburse it also for civil
purposes. The Malikites, here, too, differ from the Sha-
fiites and agree with the Hanifites, and in fact outdo the
latter. For according to the Malikites, the imam has full
discretion in the disbursement, not only of the entire fafy
revenue, but also of the fifth of booty revenue.

The outstanding feature of Mohammedan financial
theory is, if one may put it so, its dual nature due to the dis-
tinction between religious and secular revenue above re-
ferred to. The standards used with respect to the former
revenue, therefore, differ essentially from those used with
respect to the latter. The zakat taxes, for instance, are pri-
marily a religious obligation as between every Moslem and
God, and the function of the state as regards them re-
solves itself into one of police — namely, of seeing that the
obligation is performed. The secular taxes, on the con-
trary, were purely civil obligations — in so far as a thing in
those times could be purely civil and free of religious im-
plication— which found their justification in the power of the
stronger or at least in a quid pro quo relation. The dhimmis
must pay the jizyah, because they have been conquered and
deserve humiliation. This is the Koranic conception. It
was later tempered by the additional justification that the
dhimmis enjoy security of life and property, and should
pay for it. This fundamental distinction between religious
and secular revenue accounts for much of the difference in
the theories concerning them. Since zakat is primarily a
religious obligation, the question of its discharge as be-
tween the tax payer and God is the fundamental question.
The mere payment of the zakat to the state could not there-
fore be sufficient by itself, unless it was also accompanied

SUMMARY AND CONCLUSION 53 1

by its discharge as a religious obligation. This principle
pushed to its logical conclusion would mean that the state
could not collect the zakat by force, should the zakat payer
refuse to settle it of his own free consent, for it is a well-
known principle that a religious obligation can validly be
discharged only when performed of one's own free will.
We have already seen how the doctors reconciled this theo-
retical requirement with fiscal necessity. Again, the zakat
debt lapses upon the death of the property owner ; debts of
secular taxes do not. Indebtedness exempts from zakat ;
it does not from secular taxes. The zakat may often be
disbursed by the owner directly to the zakat beneficiaries;
the secular taxes must always be paid to the state. The
zakat payer is believed when he claims to have himself dis-
bursed his tax dues ; the payer of secular taxes is not. The
collectors of zakat are not subject to audit; those of secular
taxes are- There is an untaxable minimum in zakat, but
none in secular taxes.

Another marked characteristic of Mohammedan theory
is its dialectical and legalistic nature. The examples that
might be cited to support this assertion are legion, and it
is a case where the only difficulty is that of selection. Here
are a few illustrations of dialectical discussion: Goats pay
zakat like sheep, because the word ganam occurring in the
Prophetic sayings (hadlth) means both; on the other hand,
for instance, mules do not pay zakat because they are not
mentioned anywhere in the sources. The zakat of camels,
when paid in kind, is settled in females only, because the
gender used in references to them in the sources is the
feminine. Again, the differences of view as to the age of
sheep acceptable in payment of zakat in kind, all center in
meanings of words. The zakat may not be given to a slave
because the word " give " used in the sources means to
transfer the ownership of a thing, and the slave is legally

532

MOHAMMEDAN THEORIES OF FINANCE

incapable of owning property. The zakat may not be dis-
bursed to fewer than three, because the plural in which
number the word is construed in the sources cannot apply
to fewer than three. The zakat may not be disbursed to a
rich person and yet it may be disbursed to tyrannical rulers,
for the latter, although they appear to be rich, in reality
are poor in consequence of the fact that their property
would not be sufficient to make proper restitution for all
their misdeeds. The zakat beneficiaries have a legal title
on the zakat proceeds, because the preposition li (to) oc-
curring in the Koranic verse expresses such a title. Again,
and perhaps this is the most absurd case of legalistic con-
sistency,— if a nisab (taxable minimum) of property is de-
stroyed before payment of the zakat due on it, and the owner
acquires a new nisab, zakat is due on it upon the lapse of
a year, if the first nisab was destroyed (halak) accidentally?
On the contrary, no zakat need be paid on the acquired nisab,
if the first nisab was destroyed (istihlak) by the owner
wilfully, for instance, for purposes of consumption, or by
sale, — notwithstanding that the owner's intention may have
been exactly to escape the zakat on the new nisab. The
reason for this seeming paradox is that in case of wilful
destruction the zakat on the nisab destroyed becomes a debt
upon the owner who thereby escapes zakat on the acquired
nisab. In case of accidental destruction, however, the zakat
on the nisab destroyed lapses and the second nisab, being
free of debt, becomes subject to the zakat i.1

Here are a few cases of legalistic discussion: The
crossbreds do not pay zakat if the mother was wild,
because the sperm of the father has been in a legal sense
destroyed by that of the mother, and so the offspring
acquires the status of the mother. Cunning to escape zakat

1 Bahr, p. 220.

SUMMARY AND CONCLUSION

before it has fallen due is lawful, since no encroachment upon
acquired rights is yet involved. A zakat debt of three
bushels of good wheat may not be paid in terms of four
bushels of inferior wheat of equal value, because this is a
case of usury (riba). The insane do not pay zakat, no
matter how rich, because zakat is an obligation (taktif),
and does not apply to a person who is not endowed with
understanding ('aql). Should a person exchange his
camels, on which zakat is to fall due at the end of the year,
for other camels, just a day before the completion of the
year, he is not subject to sakat, because camels are
subject to zakat in virtue of their physical identity, but
the camels received in exchange are not the very same ani-
mals and therefore are subject to zakat only after a year
has elapsed after their acquisition. An animal is consid-
ered one of pasture only in case it has been pastured for
at least slightly over half a year, since otherwise the quality
of being a pasture animal would not have been predominant,
and in law importance attaches to the predominant only.
Non-Moslems do not pay a toll on pigs by themselves, be-
cause pigs are non-fungible (qlmi) goods, and to collect a
toll on them on the basis of value would be tantamount to
collecting a part of the pigs themselves, but pigs are pro-
hibited to Moslems. Pigs, however, are subject to toll if
found in connection with an article that by itself is fit to
pay toll, such as wine, because in such case the pigs would
merely be an appurtenance (taba() of the wine, and it is a
legal principle that what is not allowed by itself may be
allowed incidentally (bi }l-taba().

Notwithstanding that dialecticism and legalism are the
dominant notes of the entire discussion, here and there
considerations of a practical nature are referred to, at least
to reinforce the argument based on dialectical and legal rea-
soning. As one might expect, this happens most often with

MOHAMMEDAN THEORIES OF FINANCE

respect to matters, such as kharaj (land-tax), on which the
sources are, relatively speaking, silent. Thus the kharaj is
levied on a piece of land regardless of whether it is owned
by a Christian or a Moslem. The kharaj rates are accord-
ing to the tax-bearing capacity of the land. Indebtedness
does not exempt from kharaj or jizyah as it does from
zakat. The jizyah rates vary with the financial means of
the tax payer. The zakat of animals (sawaim) is given
precedence over that of trade, because as al-Shafi'i pleads,
the property owners " often do not pay " their zakat of
trade, whereas the zakat of animals is collected by the state
itself and may not be so easily escaped. Again, with re-
spect to the zakcit of gold and silver, a Hanifite doctor in-
vokes administrative expediency to avoid incommensurate
numbers.

It is hardly surprising that Mohammedan financial dis-
cussion is dialectical and legalistic. As already explained,
Mohammedan financial theory is an integral part of fiqh
or Mohammedan law. Mohammedan law in turn is de-
rived from the revealed sources of the Koran and the Pro-
phetic utterances and conduct (sunnah), and its avowed
object (gayah) , as the doctors put it, is " beatitude in the
two worlds." There is a body of revealed truth from which
one must not stray, and to which one must adapt himself
as best he can. Evidently the only element of flexibility in
a situation of this sort lies in reading new meanings into
the old letter, unless it be that the letter itself is ignored,
and this has often been done and is being done. In fact,
the layman at large prefers the latter course and leaves the
task of casuistry to the doctors who are responsible for the
theory and should also be responsible for its salvation.

It may not be amiss to conclude with a few generaliza-
tions as to the characteristics of the three schools that have
most claimed our attention. The Hanifites, at least so far

SUMMARY AND CONCLUSION

as financial theory is concerned, base their arguments more
on dialectical and legal considerations than on precedent in
the wide sense of the Koran, the Prophetic utterances
and conduct, and the practice of the early califs. The
Shafiites, on the other hand, put the emphasis on precedent
at the expense of scholastic reasoning. Finally, the Mali-
kites, while resembling the Shafiites in the neglect of scho-
lastic methods, are yet not quite so keen on precedent. In
short, the Hanifite treatment may be said to be a more or
less abstract and schematic statement of the principles and
rules of conduct pertaining to finance involved in the pre-
cedent mentioned, more for the sake of scholastic satisfac-
tion than for practical reasons; the Shafiite treatment, on
the other hand, is an ordered statement of those principles
and rules of conduct with a view to attaining as faithful a
statement of the divine law as possible; finally, the Mali-
kite treatment is an attempt at a more or less ordered state-
ment of those same principles, however, more with a view
to practical exigencies and the solution of concrete actual
problems, than is probably true of either of the other two
schools.

Part III., where the origins of the Mohammedan tax
system and its relation to theory will be discussed, will con-
stitute a later monograph.

INDEX

This index is intended primarily as a glossary, giving therefore only
the names which have not been explained every time they recur. It
also facilitates reference to the topics treated, especially those that are
not indicated in the table of contents or are difficult of access. Ex-
pressions in English should be looked up under the principal name,
e. g.t article of trade, under article. Numbers indicate pages.

Abbreviations and signs, 8, 9, 158

Abu Hanlfah, 69, 70, 138

Abu Yusuf, 140

ada, 115, 116

'afw, 234.

ahl al-sadaqah, 473

Ahmad Ibn Hanbal, 145

ojza, 323 fn.

a'mdl, 497

amdn, 355

'dmil, 316

'dmmi, 127

amr bi 'l-ma'ruf, 350

'aqd (a/-) dhimmah, 357

'arad (or 'ar</), 270

'arif, 476fn.

article of trade, 271

'dshir, 314

(a/-) A $1, 73, 177

assignment, 485

athar, 143

al-Awza'i, 146

'ayn, 208, 334fn.

'azlmah, in

baqr, 251

bdtil (butldn), in

bayt-al-mdl, 423

Bibliography, 157; biographical,
159; bibliographical, 163; lexi-
cological, 165; Koran, 167; Tra-
dition, 169; science of, 172;
Principles of law, 173; Appli-
cations of law, 177; Hanifite,
177; fatwa collections, 184; Sha-
fiite, 186; Malikite, 190; Other
schools, 194; Differences, 194;
Sects, 194; Miscellaneous, 195

bid.d'ah. 322, 38sfn.

bid'ah, 36

bint labun, 249

bint ma k had, 249

Books, the six, 39

booty (revenue), 409, 425, 430

bustdn, 379 fn.

cause, 74; (sabab), 109

claims, 277

collection, of zakdt, 296; resort
to intuition in, 339; use of cun-
ning in, 342; of fa'y, 396

collectors, kinds of, 304, 305, 310;
share of, 443; of zakdt, 296; of
fa'y, 396; audit of, 498

commentaries, 157

Companions, 61 ; books on, 159

condition, 109

continuity, 39

convenient, 81

cunning, use of, 342

custom, 106; see law.

damdn, 236fn.

ddr al-'ahd, 354

ddr al-harb, 354

ddr al-isldm, 354

Dawud Ibn 'Ali, 146

dayn, 334fn.

debtors, share of, 447

dhimmah, 292, 334fn.

dhimmi, 357

dimdr, 214

dinar, 264fn.

dirham, 264fn.

discharge, 323fn.

discontinuity, 45

discontinuous (report), 45

dissolution, of year, 219

537

538

INDEX

diwdn, 477fn.

diydnah, 5i7fn., 323 fn.

dogmatics, 27

Domain, Public: development of
waste lands, 502; concession of,
500; of cultivated lands, 507;
of mines, 511; pastures, 516;
reservation of, 513; forests, 516;
fishing and hunting, 517; water,
518; markets, schools, etc^ 522

effective (cause), 77, 81, 109

Emigrants, 473fn.

evidence, short ah, 23

expenditure: of zakdt, 439; of
booty, 465; of fa'y, 470; mili-
tary stipends, 477; tax grants,
484; public treasury, 423

faidah, 224

faqih, 24

for', 74 '

faraq, 291 fn.

fard., 112; — 'ayn, 112; —kifdyah,
112

fdsid (fasdd), in

fdsiq (fisq), 120

fatdwa or fatdwi (plural of
fatwa), 127; fatwa collections,
157, 158, 184, 190, 194

fa'y, 425 fn.; — revenue, 425, 430

fiqh, 24, 28, 71 fn.; books on, 177-
194

fishing, 517; see Domain.

Followers, 62

forests, 516; see Domain.

ganam, 254

ganimah, 409, 425 fn.

gayr Idzim, mfn.

hadith, 36, 71 fn.; works on, 169;
science of, 38; works on, 172

hadith-fote, 68

hdl, 49ofn.

baldl, 114

har dm, 115

harbi, 354

harim, 506

Helpers, 475fn.

Hijrah, 31, 474fn.

fcikdyah, 2$fn.

hima, 513

bM, 286fn.

hiqqah, 240

hirz, 2iofn.

hudnah, 355 fn.

hukm, 24fn.

huqiiq allah, 28

huqtiq 'ibdd, 28
hwrmah, no
'ibdddt, 24
ibdhah, no
i/fa, 127
*£fa.sr, 5i8fn.
ihtisdb, 494fn.

lAy<*', 503

t/aroA, 95

t;w*^ 60; see law.

ijtihdd, 117

ikhrdj, 49ofn.

't//a/», 74

't/w, 25 fn., 71 fn., 99, 143

'ilm-al-hadith, 38; books on, 172

'Urn al-tafsir, 34, 168

imdm, 368

imdn, 137

impeachment (of a hadith), 51

indigent, 443

individual (report), 44

intention of trade, 206, 271; of
payment, 323

iqtd1, 484

Islam, 136

isndd, 45

istidldl (mursal), 102

istifd', 494fn.

istifddah, 222

istihbdb, 307

istihsdn, 73, 94 and fn.; see law.

isti$hdb, 73, 103; —al-hal, 103;
— al-mddi, 103

istisldb, 73, 86, 102

istisnd', 26fn.

ithbdt, 490fn.

/odto' (a/t), 249, 255

(/i '/-) /ad^rf, 187

/a't^, 114

;ar»fr, 395

;i>ya/t, 399, 486fn.

>M'/, 348

just (justice), 120

kaffdrah, 2O9fn., 337fn.

kdfir, 137

kaldm, 27

karm, 379fn.

khardj, 377, 486; — tnuqdsamah,
378 ; — muqdta'ah, 378fn. ; — m«-
wazgaf, 378; — wastfah, 378

Kharijites, 136

knowledge, axiomatic, 43; infer-
ential, 43; acquisitional, 43fn.

khultah,

INDEX

539

Koran, 30 ; commentaries, 34, 167 ;
concordance, 169

kufr, 137

lands, tithe-, 360; khardj-, 364;
amiriyyah—, 375; property in,
364 and fn., 365, 366, 367, 3^9,
370, 371, 375, 376 and fn., 509
and fn., (in Syria and Egypt)
387; tax-bearing capacity of,
381, waste lands, 500. Cf. Do-
main.

lapse, of year. 218

law. sources of : Koran, 30 ; Pro-
phetic conduct, 35, 113; con-
sensus of the community, 60;
analogy, 67; istihsdn, 94; isti-
$db, 102; istijhdb, 103; con-
duct of Companions, 104; of
Followers, 106; custom, 106;
previous dispensations, 107; use
of opinion, controversy on, 68;
rules of, 117

Idcim, uifn.

madh-hab, 133; see school.

ma'dhun, 290

madrasah, 524; see Domain.

inahgur, 115

makrth, 114

mdl (revenue), 200, 261, 273

Malik, 141

tnandub (nadb), 114

tnann, 286fn.

man$u$ 'alayh, 78

markets, 522; see Domain.

masdlih, share of, 469

mash-hur, 44

ma$lahah, 102

mawquf, uifn.

milk, 207

mine, 415 (cf. Domain) ; conces-
sion of, 511

mithli, 334fn.

mithqdl, 2O4fn.

Moslem, 135; orthodox, 135; her-
etical, 135

mosques, 522; cf. Domain.

mu'allafah (qulubuhum), 449

mu'dmaldt, 29

mu'dratfah, 91

mubdh, 114, 518

muddrabah, 385 fn.

mudlr, 275

mufti, 127

muhddanah, 35$fn.

Muhammad Ibn al-Hasan, 140

mubtasib, 302, 350

mujtahid, 117; kinds of, 121

mukallaf, 90

mukdtab, 2i3fn.; share of, 446

mukhdbarah, 38510.

mukus, 199, 337

muld'im, 83

(al-khabar a/-) munqatf, 45

muqallid, 126

mursal, 45

tnusaddiq, 316

musdqdt, 385 fn.

musinn (ah), 252

musnad, 46; Musnad, 169

mustafid, 44fn.

tnustafti, 127

mustahabb (istihbdb), 114

musta'min, 355

mutawdtir, 40

muwdda'ah, 355

muzdra'ah, 385 fn.

nadrah (nadrat), 417

ndfidh, iiifn.

t»a^, 114

noqrrf (aw), 206, 221

naskh, 89

wow, 79, 157

(a/-) Nawddir, 126, 179

ntfafc, 205

pasture lands, 516; see Domain.

poor, 440

productivity, 206

pronunciation of Arabic words, 8

property, (non-) apparent, 209,
296, 301

purpose, useful, 102

qabdlah, 377 fn.

qadd', 115, 5i7fn.

(fi '/-) qadim, 187

qawl, 157

qirdt, 2O4fn.

qirbah, 291 fn.

qiyds, 67, 73 ; see law.

quantities, stated, 75

rabb al-mdl, 38sfn.

raf, 4^ofn.

rail (or rill), 286fn.

rdwi, 48

ra'y, 69, 71

ra'y-folk, 68

refusers (of zakdt), 302

Relations, 467

revenue, kinds of, 200, 425; (in
detail), 429; sources of reve-
nue: sakdt, 203; tithe, 282;

540

INDEX

financial contribution for war,
348; land-tax, 377; poll-tax,
398; tax on spoils of war, 409;
on mines, 413; on treasure-
trove, 418; on estates and tolls,
422

rikds, 414 and fn.
rivers, 519; see Domain,
roads, 522; see Domain.

rukh$ah} in, 115

rukn, 109

fa", 286fn.

sabab, 109

sadaqah, 204, 439fn.; see revenue.

sadaqat al-fitr, 207 in.

sahih, in, I27fn.

Sahib, 39, 169

Sai, 298, 316

salaf, 49fn.

salam, 95

sawdb, 132

sawaim, 244

sawm, 206

schools, 133; followers of a, 130;
change of a, 130; orthodox,
133; differences of, 137; Hani-
fites, 138; Malikites, 141; Sha-
fiites, 142 ; Hanbalites, 145 ;
Zahirites, 146, 524 (Domain).

science 0»/m), meaning of, 25fn.;
classification of, 27

al-Shafi'i, 73, 142

shakk, I32fn.

shariah, 23

shart, 109

shdt] 2S4fn.

sign, 109

sihhah, no

spoils (of war), 409, 425fn.

sunnah, 35, 113; of the Compan-
ions, 104; of the Followers, 106;
established, 46

siirah, 33

tabi' (ah), 252

Taglib (tribe of), 241

taharri, 131 ; use of, 339

tahjir, 506

ta'lil al-usiil, 78

tamakkun (min al-ada), 328

tamlik, 203, 213

taqlid, 126

tatawwu', 114

tawqi', 494fn.

text, 157; esteemed, 123, 181

tithe, 283 ; see revenue.

thaman, 206

thani (yyah), 254, 255

thawdb, no, 112

al-Thawri, 146

transliteration (of Arabic words),
8

transmitter, 48; books on — s, 159

treasury, public, 423

umm walad 319

unknown, 48

'urad (pi. of 'ar$, 'arad), 270

'ushur, 337

Usul, 125, 177

usul-al-din, 27

usul-al-fiqh, 26, 28; works on, 173

usury, 227, 228. 229fn., 333

value (shart'ah), 24fn., 109; clas-
sification of, 109

wajh, 157

wdjib, no, 112

wdli al-sadaqdt, 316

waqf, 362; sale of, 433

Wdqi'dt, 126, 180, 184

waqs, 265; (pi. awqds), 253

waif, 78

wasq, 286fn.

waste (land), 500

water, kharaj-, 360; tithe-, 359

the way of God, 447

wayfarers, share of, 449

weight, septimal, 264fn.

wujtib, no

yad, 207

sdhir, 50

Zdhir-al-madh-hab, 125, 177

Zdhir-al-riwdyah, 125, 177

^a^af, 203, of animals, 244; of
gold, silver, and articles of
trade, 261; of produce (tithe),
282

sann,

VITA

THE author, Nicolas (son of) Prodromos Aghnides, was
born of Greek parents at Kayabashi (suburb) of Nigdeh,
vilayet of Koniah, Turkey, 1883. He received his first
education in the Greek Community School of his native
place. From 1900 to 1903 he attended the American mis-
sionary college at Marsovan, Turkey. During the next year
he studied at the French school, ficole St. Joseph, Kadi-
keuy, Constantinople. Subsequently, he took up a law
course in the Imperial Law School of Constantinople, where
he was graduated in 1909. During 1910 he practiced at
law. In 1911 after competitive examination he obtained
a Turkish Government scholarship for study at Columbia
University. He registered there in the Faculty of Political
Science and received the degree of M. A. in 1913. In the
same year he registered for the degree of Ph. D. He has
taken courses chiefly under Professors E. R. A. Seligman,
H. R. Seager, H. L. Moore, W. C. Mitchell, J. B. Clark,
V. G. Simkhovitch, F. A. Fetter, J. Schumpeter, Karl F.
Th. Rathgen, H. R. Mussey, R. E. Chaddock, F. H. Gid-
dings, J. H. Robinson, J. T. Shotwell, W. A. Dunning, and
John Dewey. He attended the Seminars of Professors
E. R. A. Seligman and H. R. Seager.

54i

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